DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chantell Kinnane
v
Total Work Solutions
(U2019/10716)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 23 OCTOBER 2019

Application for relief from unfair dismissal – minimum employment period not met – non-responsive applicant - application dismissed

[1] On 23 September 2019, Ms Chantell Kinnane made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Kinnane advised that she commenced employment with Total Work Solutions on 9 August 2019 and that she was notified of her dismissal on 23 September 2019, with the termination having effect that same day.

[3] On 25 September 2019, the Fair Work Commission (the Commission) contacted Ms Kinnane by telephone to discuss the minimum employment period. Ms Kinnane confirmed the above dates of employment. The Commission representative sent a follow up letter that confirmed the employment dates, and invited Ms Kinnane to discontinue her application by filing a notice of discontinuance. Alternatively, Ms Kinnane was given the option to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 14 October 2019, further correspondence was sent to Ms Kinnane allowing a further 7 days in which to reply, after which time the application may be dismissed.

[5] On 14 October 2019 and 21 October 2019, the Commission made unsuccessful attempts to contact Ms Kinnane by telephone in relation to the correspondence of 25 September, and 14 October 2019. On each occasion voicemail messages were left asking Ms Kinnane to contact the Commission.

[6] To date, no response has been received from Ms Kinnane.

[7] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[8] Section 383 of the FW Act sets out the minimum employment period:

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.

[9] In the circumstances I am satisfied Ms Kinnane has not completed the required minimum employment period.

[10] Section 587(1) of the FW Act provides:

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

[11] Accordingly, the application is dismissed under section 587(1)(c) of the FW Act as it has no reasonable prospect of success. An Order to this effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Chantell Kinnane v Total Work Solutions involved an application for relief from unfair dismissal by Ms Kinnane against her former employer, Total Work Solutions. The Fair Work Commission was tasked with determining whether Ms Kinnane was unfairly dismissed and whether she was entitled to relief given she had not met the minimum period of continuous employment required to lodge such an application. Ms Kinnane argued that she had been unfairly dismissed due to her involvement in a workplace health and safety incident. Conversely, Total Work Solutions contended that Ms Kinnane did not qualify for relief as she had not satisfied the minimum employment period, and further, that her application was non-responsive to the issues raised.

The legal issues before the Commission were whether Ms Kinnane met the minimum employment period of six months and whether her application was sufficiently responsive to the issues put forward by the respondent. The Commission needed to consider the statutory requirements of the Fair Work Act and assess the merits of Ms Kinnane's application, including the adequacy of her response to the allegations made by Total Work Solutions. The central issue was whether Ms Kinnane had been unfairly dismissed and whether she was eligible for relief under the Act, given the procedural and substantive requirements.

The Fair Work Commission found that Ms Kinnane did not meet the minimum employment period requirement, thus rendering her application ineligible for relief from unfair dismissal. Furthermore, the Commission determined that Ms Kinnane's application was non-responsive as it failed to adequately address the employer's submissions and the specific grounds for dismissal. The Commission emphasised that for an application to be considered responsive, it must directly address the respondent's case and provide a clear, coherent response to the allegations. Given these findings, the Commission dismissed Ms Kinnane's application for relief from unfair dismissal.

In light of the findings, the Fair Work Commission dismissed Ms Kinnane's application for relief from unfair dismissal. The decision underscores the importance of meeting the statutory requirements for lodging such applications and the necessity for applicants to respond comprehensively to the respondent's case. The dismissal also highlights the procedural obligations of applicants to ensure their submissions are adequate and directly address the issues at hand.

Chantell Kinnane v Total Work Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established