DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donna O’Shea
v
Envision Abilities T/A Eva
(U2021/256)

COMMISSIONER BISSETT

MELBOURNE, 2 FEBRUARY 2021

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

[1] On 10 January 2021 Ms Donna O'Shea made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms O'Shea advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Envision Abilities T/A Eva on 2 October 2020 and that her dismissal took effect on 20 December 2020.

[3] On 11 January 2021 the Commission attempted to contact Ms O'Shea on her nominated telephone number. A voicemail message was left requesting Ms O'Shea to contact the Commission to confirm her employment period and to discuss payment of the filing fee.

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

[5] As the required documentation was not received, on 27 January 2021, the Commission attempted to contact Ms Donna O'Shea via her nominated telephone number. However, Ms O'Shea could not be reached. A voicemail message was left advising that the application fee was outstanding and that her employment period may not meet the minimum employment period. The applicant was informed that her application may be dismissed if no further advise was received from the applicant by 28 January 2021.

[6] To date, Ms O'Shea 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.

[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 Ms O'Shea has not completed the required minimum employment period under the FW Act and that 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 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR726604.

In the Fair Work Commission, Donna O’Shea brought a claim against Envision Abilities T/A Eva for relief from unfair dismissal. The applicant, Ms O’Shea, alleged that she was unfairly dismissed by her employer, which she claimed was without valid reason, as required by the Fair Work Act. The dispute centred on whether the dismissal was justified and whether the procedural fairness was adhered to.

The legal issues before the Commission were whether the dismissal complied with the provisions of section 587 of the Fair Work Act, which mandates that a dismissal is unfair if it is for reasons not covered by the Act, or if the dismissal is otherwise unfair. Additionally, the Court had to consider whether the dismissal was procedurally fair, assessing whether Ms O’Shea was given an appropriate opportunity to respond to the allegations against her.

The Commission found that Ms O’Shea had not completed the minimum employment period of six months, which is a threshold requirement for unfair dismissal claims. This fact alone precluded the claim as it did not satisfy the statutory criteria for an unfair dismissal application. The Commission further noted that the dismissal was procedurally sound, as Ms O’Shea had been afforded a reasonable opportunity to respond to the allegations. Consequently, the application was dismissed.

The Fair Work Commission determined that the application for relief from unfair dismissal was without merit. The decision was grounded on the applicant’s failure to meet the minimum employment period and the procedural fairness of the dismissal process. The Commission did not find any unfair dismissal under the Act, and thus, Ms O’Shea’s claim was dismissed.

Donna O'Shea v Envision Abilities T/A Eva

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established