Brooke Duncan v Open Door Pub Co. Pty Limited

[2023] FWC 2890

[2023] FWC 2890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brooke Duncan
v

Open Door Pub Co. Pty Limited

(U2023/9317)

DEPUTY PRESIDENT CLANCY MELBOURNE, 3 NOVEMBER 2023

Application for relief from unfair dismissal – minimum employment period – dismissal under
s.587 at the Commission’s initiative

1. On 26 September 2023, Ms Brooke Duncan (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. Ms Duncan advised in the Form F2 Unfair Dismissal Application (Form F2) that she

commenced employment with Open Door Pub Co. Pty Limited (the Respondent) on 27 March 2023 and was dismissed on 25 September 2023.

1. On 4 October 2023, the Commission attempted to contact Ms Duncan on her nominated

telephone number. Ms Duncan could not be reached. A voicemail message was left advising that, based on the information provided to the Commission, Ms Duncan may not have met the minimum employment period. Ms Duncan was advised to contact the Commission by 18 October 2023, or that otherwise the matter may be referred to a Member and dismissed without further notice.

1. That same day, the Commission emailed correspondence to Ms Duncan’s nominated email address advising Ms Duncan that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. This correspondence directed Ms Duncan to file any documents or other evidence to support her claim that she had served the required minimum employment period. This correspondence also warned that, if she did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. Later that day, Ms Duncan telephoned the Commission and spoke with a Commission staff member. Ms Duncan was advised that her matter was unlikely to proceed as the minimum employment period may not have been met. Ms Duncan stated that she would advise the Commission in due course of whether she wanted to proceed with her application.

1. On 20 October 2023, the Commission attempted to contact Ms Duncan on her nominated telephone number. Ms Duncan could not be reached, and a voicemail message was left requesting that Ms Duncan urgently contact the Commission to advise of whether she wished to proceed with her application. Ms Duncan subsequently contacted the Commission and advised that she wished for the matter to be referred to a Member of the Commission.

1. The matter was subsequently referred to me. On 24 October 2023, I directed that correspondence be sent to Ms Duncan. This correspondence advised Ms Duncan that it was my

preliminary view that, based on the information provided to the Commission, she had not been engaged for the minimum employment period and her application therefore had no reasonable prospect of success. Ms Duncan was required to file submissions by 31 October 2023 as to why I should not dismiss her application.

1. On 24 October 2023, Ms Duncan emailed correspondence to my Chambers advising that she wished to continue with her application to ‘see if there’s any room for these rare and calculated circumstances to impact its success if possible’. No further information was provided regarding her period of employment with the Respondent.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if

they have completed a period of employment. I am satisfied Ms Duncan has not completed the required minimum employment period.

1. Section 383 of the FW Act sets out the minimum employment period as follows:

383       Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the
earlier of the following times:

(i)the time when the person is given notice of the dismissal;

(ii)immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

1. Section 587(1) of the FW Act provides as follows:

587        Dismissing applications

(1)Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)the application is not made in accordance with this Act; or

(b)the application is frivolous or vexatious; or

(c)       the application has no reasonable prospects of success.

1. As Ms Duncan has not completed the required minimum employment period under the

FW Act, the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR767996.

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