Claire Eldridge v MacKillop Family Services

[2024] FWC 2877

[2024] FWC 2877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Claire Eldridge
v

MacKillop Family Services

(U2024/10377)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 OCTOBER 2024

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

1. Mrs Claire Eldridge applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 4 September 2024.

1. Mrs Eldridge stated in her unfair dismissal application (Form F2) that her employment with MacKillop Family Services (the Respondent) commenced on 30 August 2024 and her dismissal took effect on that same day.

1. On Monday, 9 September 2024, the Commission attempted to contact Mrs Eldridge on her nominated telephone number for two reasons. First, the information provided in her Form F2 suggested that she may not have served the minimum employment period to be protected from unfair dismissal under the Act. Second, the application was incomplete in that Mrs Eldridge had not paid the required fee or lodged a complete Form F80 – Application for waiver of the application fee (Form F80). There was no facility to leave a voicemail message to request her to urgently contact the Commission.

1. Later that day, the Commission emailed correspondence to Mrs Eldridge’s nominated email address informing her that she had not served the applicable minimum employment period based on the information that she had provided in her Form F2. The correspondence directed Mrs Eldridge to file any documentation to support any claim that she had served the applicable minimum employment period under the Act. That correspondence also warned Mrs Eldridge that if she did not contact the Commission within 14 days, her application might be dismissed without further notice. A SMS notification was also sent to Mrs Eldridge’s nominated mobile number requesting her to contact the Commission.

1. In response, the Commission received a phone call later on 9 September 2024 from Mrs Elridge’s support person who stated that Mrs Elridge completed a period of employment with the Respondent for just under 6 months.

1. Mrs Elridge also emailed the Commission on 9 September 2024 requesting a call back to obtain a “better understanding of what is happening and what happened to me and an employee”.

1. On 23 September 2024, the Commission contacted Mrs Eldridge on her nominated telephone number. Mrs Eldridge stated that her employment with the Respondent commenced on Monday, 4 March 2024 and her dismissal took effect on 30 August 2024. Mrs Eldridge informed the Commission that she thought she had not met the minimum employment period requirements. Mrs Eldridge was informed that a matter involving an applicant who has not completed a period of employment with their employer of at least the minimum employment period is likely to be dismissed. She was requested to inform the Commission as soon as practicable as to whether she wished to discontinue her application. Mrs Eldridge was also informed that the Commission had not received her Form F80. Mrs Eldridge advised that she would obtain legal advice and inform the Commission whether she sought to discontinue her application. Mrs Eldridge was provided information about where to find legal help on the Commission’s website.

1. The Commission did not subsequently receive any documentation in support of Mrs Eldridge’s Form F2 that established that she had worked for the Respondent for the applicable minimum employment period.

1. The Commission made a final attempt to contact Mrs Eldridge on her nominated telephone number on 4 October 2024. The call was not answered and a voicemail was left requesting Mrs Eldridge to urgently contact the Commission outlining whether she decided to discontinue her application and informing her that her application was at risk of being dismissed if no contact was received.

1. To date, Mrs Eldridge has not responded since the Commission’s last attempt to contact her in relation to her Form F2 application.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the Act sets out the meaning of 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.” (bold and italicised text in the original)

1. Section 587 of the Act relevantly 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.

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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. The relevant Form F2 application has not been accompanied by either the prescribed application fee or a completed Form F80. Therefore, the application has not been made in accordance with the Act. More fundamentally, however, Mrs Eldridge needs to have completed a period of employment of at least 6 months with the Respondent to be protected from unfair dismissal. The material before the Commission indicates that Mrs Eldridge has not satisfied this requirement and, therefore, I am satisfied that her application has no reasonable prospects of success. As such, Mrs Eldridge’s unfair dismissal application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.    

DEPUTY PRESIDENT

[1] PR780321.

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