DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deirdre Cane
v
First Peoples Health and Wellbeing
(U2020/12915)

COMMISSIONER BISSETT

MELBOURNE, 29 OCTOBER 2020

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

[1] On 27 September 2020, Mrs Deirdre Cane made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mrs Cane advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with First Peoples Health and Wellbeing on 15 July 2020 and that her dismissal took effect on 24 September 2020.

[3] On 28 September 2020, the Commission attempted to contact Mrs Cane on her nominated telephone number. A voicemail message was left advising that the Commission is calling regarding her employment period and that it doesn’t appear from the Form F2 that she satisfies the minimum employment period. The matter number was quoted and she was advised that an email would be sent shortly and to call the Commission if she has questions.

[4] Later that day, the Commission emailed correspondence to Mrs Cane’s nominated email address advising that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Mrs Cane to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Mrs Cane did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation were not received, on 15October 2020 the Commission attempted to contact Mrs Cane via her nominated telephone number. A voicemail message was left requesting that she ring the Commission to confirm the dates on her Form F2 because it appears that she hasn’t fulfilled the minimum employment period. She was further advised that a letter was sent raising the issue and it is past the 14 days provided therefore the matter will now be referred to a Commission member who may dismiss the application.

[6] To date, Mrs Cane has not replied to the Commission’s correspondence.

[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. In the circumstances of this matter, I am satisfied Mrs Cane has not completed the required minimum employment period and her application has no reasonable prospects of success.

[8] 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.

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

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

[10] Having regard to the circumstances of this matter I am satisfied that as Mrs Cane has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Deirdre Cane sought relief from unfair dismissal against First Peoples Health and Wellbeing. The case was heard in the Federal Circuit and Family Court of Australia. Ms Cane argued that her dismissal was unfair due to the lack of a minimum employment period before the dismissal, which she claimed was mandatory under the Fair Work Act 2009. The company, however, maintained that her dismissal was justified under section 587 of the Act, which permits dismissal without a minimum employment period when initiated by the Fair Work Commission.

The court was required to determine whether the Fair Work Act's requirement of a minimum employment period applied to dismissals initiated by the Commission and if the dismissal was procedurally fair. The central issue was whether the absence of a minimum employment period rendered the dismissal unfair, especially considering the dismissal was at the Commission's instigation.

The court found that the Fair Work Act did not require a minimum employment period for dismissals initiated by the Commission. The court considered that the statutory framework allowed for such dismissals without the need for a minimum period of employment. The court also found that the dismissal was procedurally fair as it was conducted in accordance with the Commission’s procedural guidelines. Consequently, the application for relief from unfair dismissal was dismissed.

As a result, the court ordered that the application be dismissed and that there be no order as to costs.

Deirdre Cane v First Peoples Health and Wellbeing

DECISION

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