Devon Flood v Bunurong Land Council (Aboriginal Corporation) Summary

[2024] FWC 3379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Devon Flood
v

Bunurong Land Council (Aboriginal Corporation)

(U2024/13007)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 DECEMBER 2024

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

Mr Devon Flood applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 31 October 2024.

Mr Flood stated in his unfair dismissal application (Form F2) that his employment with Bunurong Land Council (Aboriginal Corporation) (the Respondent) commenced on 29 April 2024 and his dismissal took effect on 23 October 2024.

On 4 November 2024, the Commission emailed correspondence to Mr Flood’s nominated email address informing him that he had not served the applicable minimum employment period based on the information that he had provided in his Form F2. The correspondence directed Mr Flood to file any documentation to support any claim that he had served the applicable minimum employment period under the Act. That correspondence also warned Mr Flood that if he did not contact the Commission within 14 days, his application might be dismissed without further notice.

On the same day, the Commission attempted to contact Mr Flood on his nominated telephone number. A voicemail message was left requesting Mr Flood to urgently contact the Commission. This was because the information provided in his Form F2 suggested that he may not have served the minimum employment period to be protected from unfair dismissal under the Act.

The Commission has not received any documentation in support of Mr Flood’s Form F2 that could evidence that he had worked for the Respondent for the applicable minimum employment period.

The Commission attempted to contact Mr Flood on his nominated telephone number on 7 November 2024. The call was not answered and a voicemail message was left requesting Mr Flood to contact the Commission to urgently confirm his dates of employment with the Respondent.

The Commission made a final attempt to contact Mr Flood on his nominated telephone number on 20 November 2024. The call was not answered and a voicemail was left requesting Mr Flood to urgently contact the Commission in relation to his application and informing him that his application was at risk of being dismissed if no contact was received by close of business on 21 November 2024.

Mr Flood has not responded to the Commission’s multiple attempts to contact him in relation to his Form F2 application.

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.

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)

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)

A person applying for an unfair dismissal remedy under the Act needs to have completed a period of employment of at least 6 months with their employer to be protected from unfair dismissal. The material before the Commission indicates that Mr Flood has not satisfied this requirement and, therefore, I am persuaded that his application has no reasonable prospects of success. As such, Mr Flood’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] PR782032.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission heard an application by Devon Flood for an unfair dismissal remedy against Bunurong Land Council (Aboriginal Corporation). Mr Flood alleged that his employment, which began on 29 April 2024, was unfairly terminated on 23 October 2024. The Commission, however, identified that Mr Flood had not completed the statutory minimum employment period required to be protected from unfair dismissal under the Fair Work Act 2009. Specifically, under section 382, an employee must have completed a minimum of six months of continuous employment with the employer to be eligible for protection against unfair dismissal. The Commission attempted to contact Mr Flood multiple times to request documentation to substantiate his claim of having completed the requisite employment period, but received no response.

The central legal issue before the Commission was whether Mr Flood had completed the minimum employment period necessary to bring his unfair dismissal claim within the scope of the Fair Work Act. The Commission noted that, according to the information provided by Mr Flood, he had not met the six-month employment threshold, which is the minimum period required for protection against unfair dismissal unless the employer is a small business employer. Given that Bunurong Land Council (Aboriginal Corporation) does not fall under the definition of a small business employer, the critical period was six months. The Commission considered the absence of any documentation or communication from Mr Flood that would support his claim of having met this threshold.

The Commission concluded that Mr Flood's application had no reasonable prospects of success, as he had not demonstrated that he had been employed for the requisite six months. The Commission exercised its power under section 587(1)(c) of the Fair Work Act to dismiss the application for being without reasonable prospects of success. The Commission made it clear that the application would be dismissed if Mr Flood did not respond to their requests for further information, and after multiple attempts to contact him without success, the application was dismissed. The Commission issued an order formalising this decision.

The Fair Work Commission dismissed Devon Flood's application for an unfair dismissal remedy. The decision hinged on the failure of Mr Flood to provide evidence that he had completed the minimum employment period of six months with Bunurong Land Council (Aboriginal Corporation). The Commission found that without this evidence, Mr Flood's application had no reasonable prospects of success, and accordingly dismissed the application under section 587(1)(c) of the Fair Work Act. An order was issued to this effect.

Devon Flood v Bunurong Land Council (Aboriginal Corporation)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established