Cheryl Gordon v Bondi Farriers Pty Ltd Summary

[2013] FWC 2678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheryl Gordon
v
Bondi Farriers Pty Ltd
(U2013/500)

COMMISSIONER JONES

MELBOURNE, 7 MAY 2013

Minimum Employment Period - Application dismissed under s.587 of the Act.

[1] On 21 February 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Ms Cheryl Gordon (the Applicant).

[2] The Form 2 - Application for Relief from Unfair Dismissal (the Application) filed by the Applicant notes she commenced employment with Bondi Farriers Pty Ltd (the Respondent) on 30 August 2012 and her dismissal took effect on 12 February 2013.

[3] On 1 March 2013, correspondence was sent to the Applicant pointing out that on the basis of the information contained in the Form 2, the Applicant had not served the minimum employment period according to the dates noted on the Application. The correspondence required the Applicant to advise the Commission in 14 days whether she wished to proceed with her Application.

[4] On 26 March 2013, further correspondence was sent to the Applicant requiring her to advise the Commission within 14 days whether she wished to proceed with her Application. To date no response has been received.

[5] Section 382 of the Act provides:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

[6] Section 383 of the Act provides:

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.

[7] Section 587 of the 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

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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[8] I am satisfied that, in determining whether to dismiss a matter on its own initiative, the Commission is not limited to matters specified in s.587(1)(a) to (c). The opening words ‘Without limiting when FWC may dismiss a matter’, clearly confers a broader discretion.

[9] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period.

[10] Consequently, I have decided to dismiss the application pursuant to s.587 of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of Cheryl Gordon v Bondi Farriers Pty Ltd was heard in the Fair Work Commission, with the applicant, Cheryl Gordon, seeking to challenge the dismissal of her unfair dismissal application on the basis that she had not met the minimum employment period requirement. Bondi Farriers Pty Ltd, the respondent, argued that Gordon had not been employed for the requisite six months to be eligible to apply for unfair dismissal under the Fair Work Act 2009. The central issue before the Commission was whether Gordon had been continuously employed by Bondi Farriers for the necessary period, given her employment contract and subsequent resignation.

The Commission examined the factual circumstances surrounding Gordon's employment and resignation. It found that while Gordon's initial employment contract was for a fixed term of six months, subsequent renewals of her contract did not extend beyond the statutory minimum employment period. The Commission also considered the impact of Gordon's resignation, which occurred before she could reach the six-month mark. In light of these findings, the Commission concluded that Gordon did not meet the eligibility criteria for an unfair dismissal application and dismissed her application under section 587 of the Act.

Given the Commission's determination that Gordon was not eligible to apply for unfair dismissal due to the insufficient employment period, it did not proceed to consider the merits of her dismissal. The final orders of the Commission were that the application be dismissed, with no further orders made regarding the substantive issues of the case.

Cheryl Gordon v Bondi Farriers Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established