Gailene Patton v Electrical Trades Union of Australia New South Wales Branch

[2023] FWC 1583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Gailene Patton
v

Electrical Trades Union of Australia New South Wales Branch

(U2023/3967)

COMMISSIONER BISSETT

MELBOURNE, 30 JUNE 2023

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

On 8 May 2023 Ms Gailene Patton 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 Patton advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Electrical Trades Union of Australia New South Wales Branch on 13 March 2023 and she was notified of her dismissal on 5 May 2023.

On 10 May 2023 the Commission attempted to contact Ms Patton on her nominated telephone number. A voicemail message was left requesting a call back to discuss her application as it appeared that the required the minimum employment period has not been met on the basis of the dates provided. The contact number for the Commission’s helpline and matter number was provided.

Later that day the Commission emailed correspondence to Ms Patton’s nominated email address advising Ms Patton that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Patton to file any documents or other evidence to support her claim that she 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. An SMS notification was also sent to Ms Patton’s nominated telephone number requesting that she contact the Commission.

As the required documentation was not received, on 25 May 2023 the Commission attempted to contact Ms Patton on her nominated telephone number. As Ms Patton could not be reached, a voicemail message was left requesting a call back to discuss her matter, the Commission helpline and matter numbers were provided.

On the 1 June 2023 a further attempt was made by the Commission to contact Ms Patton on her nominated telephone number. As Ms Patton could not be reached, a voicemail message was left requesting an urgent call back to discuss her matter and as no correspondence has been received, her matter will be referred to a Member of the Commission for a decision in relation to her matter.

To date Ms Patton 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. I am satisfied Ms Patton has not completed the required 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 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 prospect of success.

As Ms Patton has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involves Gailene Patton, who applied to the Fair Work Commission for a remedy for unfair dismissal against the Electrical Trades Union of Australia New South Wales Branch. The application was made under section 394 of the Fair Work Act 2009. Gailene Patton claimed that she had been employed by the Union from 13 March 2023 and was dismissed on 5 May 2023. The Fair Work Commission was required to determine whether the application could proceed, focusing on whether the applicant had completed the required minimum employment period to be eligible for the remedy.

The primary legal issue was whether Gailene Patton had completed the minimum employment period stipulated under section 383 of the Fair Work Act. Section 383 defines the minimum employment period as six months if the employer is not a small business employer, or one year if the employer is a small business employer. The Commission had to assess whether Patton had met this requirement to have a reasonable prospect of success for her unfair dismissal claim. Additionally, the Commission considered whether the application complied with the procedural requirements set out in the Act and whether the application was frivolous or vexatious.

The Fair Work Commission found that Gailene Patton had not completed the minimum employment period required by the Fair Work Act. The Commission had attempted multiple times to contact Patton to provide her with an opportunity to submit evidence or further information, but received no response. Given that Patton had not provided any documentation to substantiate her claim of having met the minimum employment period, the Commission concluded that her application had no reasonable prospect of success. Therefore, the application was dismissed under section 587(1)(c) of the Fair Work Act.

The Commission dismissed the application for unfair dismissal remedy as the applicant did not meet the minimum employment period requirement.

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