Elizabeth Church v Feros Care

[2022] FWC 1165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elizabeth Church
v

Feros Care

(U2022/4302)

COMMISSIONER O’NEILL

MELBOURNE, 18 MAY 2022

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

On 12 April 2022 Ms Elizabeth Church 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).

Ms Church advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Feros Care in October 2021 and that her dismissal took effect on 31 March 2022.

On 13 April 2022 the Commission emailed correspondence to Ms Church’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 Ms Church 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 Church did not contact the Commission within 14 days, the application may be dismissed without further notice.

As the required documentation was not received, on 4 May 2022 the Commission attempted to contact Ms Church via her nominated telephone number however she could not be reached. A voicemail message was left requesting that Ms Church contact the Commission and confirm her employment period, or the application would be referred to a Member and may be dismissed.

On 13 May 2022, the Commission emailed correspondence to Ms Church’s nominated email address advising her the Commission was considering dismissing her application. The correspondence directed Ms Church to file any documents/evidence to support her claim that she had served the required minimum employment period by 4pm on 18 May 2022, or her application would be dismissed,

To date Ms Church 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.

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 Ms Church 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[1] to this effect will be issued with this decision.

COMMISSIONER

[1] PR741605.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission dismissed Ms Elizabeth Church's application for unfair dismissal against Feros Care. Ms Church alleged that she was unfairly dismissed from her employment, which began in October 2021 and ended on 31 March 2022. The Commission found that Ms Church had not satisfied the minimum employment period required by the Fair Work Act 2009 (FW Act), which is six months of continuous employment with the employer unless the employer is a small business, in which case the minimum period is one year. Given that Ms Church had not provided any evidence to substantiate her claim that she had completed the requisite minimum employment period, the Commission was satisfied that her application had no reasonable prospect of success.

The primary legal issue before the Commission was whether Ms Church's application for unfair dismissal was frivolous or vexatious or had no reasonable prospect of success. Under section 587(1)(c) of the FW Act, the Commission has the authority to dismiss an application if it finds that the application has no reasonable prospect of success. This assessment hinges on the employee's completion of the minimum employment period as outlined in section 382 of the FW Act. The Commission found that Ms Church's failure to provide evidence of completing the minimum employment period rendered her application without merit.

The Commission meticulously reviewed the correspondence sent to Ms Church, including email and voicemail attempts to seek further documentation from her. Despite multiple warnings and opportunities to submit the necessary evidence, Ms Church did not respond to the Commission's inquiries. Consequently, the Commission concluded that the application was frivolous or vexatious, and dismissed it under section 587(1)(c) of the FW Act. The Commission determined that the application was not made in accordance with the Act and had no reasonable prospect of success.

The Commission issued an order dismissing Ms Church's application for unfair dismissal, as outlined in the decision. This dismissal was based on the lack of evidence supporting the completion of the minimum employment period required by the FW Act. The Commission's decision highlights the importance of employees providing adequate evidence to substantiate their claims under the Act.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established