Elayne Taylor v Armidale Catholic Schools

[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.

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).

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.

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.

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.

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.

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

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 Taylor has not completed the required minimum employment period and her application has no reasonable prospects of success.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission assessed the application of Mrs Elayne Taylor for a remedy for unfair dismissal against Armidale Catholic Schools. Mrs Taylor claimed that she had been employed by the schools since 2003 and dismissed in the same year. The Commission contacted Mrs Taylor to verify her employment dates, but she failed to respond to the correspondence and follow-up calls. The Commission found that Mrs Taylor had not met the minimum employment period requirement under the Fair Work Act 2009 and dismissed the application. The Commission's decision was based on the lack of evidence provided by Mrs Taylor to support her claim of having served the minimum employment period, which resulted in the application having no reasonable prospects of success. The Commission dismissed the application under section 587(1)(c) of the FW Act and issued an order to that effect.

The primary legal issue before the Commission was whether Mrs Taylor had completed the minimum employment period required to be protected from unfair dismissal under the Fair Work Act 2009. Section 382 of the 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. The Commission had to determine whether Mrs Taylor had met this requirement based on the information provided in her Form F2 Unfair Dismissal Application. The Commission also had to consider whether the application had any reasonable prospects of success in light of the minimum employment period requirement.

The Commission concluded that Mrs Taylor had not completed the required minimum employment period under the Fair Work Act 2009. The Commission found that Mrs Taylor had not provided any evidence to support her claim of having been employed by Armidale Catholic Schools since 2003. The Commission attempted to contact Mrs Taylor to verify her employment dates, but she failed to respond to the correspondence and follow-up calls. As a result, the Commission was satisfied that the application had no reasonable prospects of success and dismissed it under section 587(1)(c) of the FW Act. The Commission's decision was based on the lack of evidence provided by Mrs Taylor to support her claim of having served the minimum employment period. The Commission also considered that the application was not made in accordance with the Act and had no reasonable prospect of success.

In light of the Commission's decision, an Order was issued to dismiss Mrs Taylor's application for a remedy for unfair dismissal against Armidale Catholic Schools. The Order confirmed that Mrs Taylor had not completed the required minimum employment period under the Fair Work Act 2009 and that her application had no reasonable prospects of success. The Commission's decision was based on the lack of evidence provided by Mrs Taylor to support her claim of having served the minimum employment period, which resulted in the application being dismissed under section 587(1)(c) of the FW Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established