Elayne Taylor v Armidale Catholic Schools

[2022] FWC 1183

[2022] FWC 1183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elayne Taylor
v

Armidale Catholic Schools

(U2022/4728)

COMMISSIONER BISSETT MELBOURNE, 18 MAY 2022

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

1. On 23 April 2022, Mrs Elayne Taylor 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).

1. Mrs Taylor advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Armidale Catholic Schools in 2003 and that she was notified of the dismissal in 2003.

1. On 27 April 2022, the Commission attempted to contact Mrs Taylor on their nominated telephone number. A voicemail message was left requesting a call back to the Commission to discuss the employment dates entered on her F2 application form.

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

1. As the required documentation was not received, on 10 May 2022 the Commission attempted to contact Mrs Taylor via her nominated telephone number. However, she could not be reached and a voicemail message was unable to be left.

1. To date, Mrs Taylor has not replied to the Commission’s correspondence.

1. 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.

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

1. 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.

1. 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

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

1. Having regard to the circumstances of this matter I am satisfied that as Mrs Taylor has not completed the required minimum employment period under the FW Act, his/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

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