Grant Kelly v Torbay Retirement Village
[2024] FWC 1860
•18 JULY 2024
| [2024] FWC 1860 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Grant Kelly
v
Torbay Retirement Village
(U2024/6412)
| DEPUTY PRESIDENT EASTON | SYDNEY, 18 JULY 2024 |
Application for an unfair dismissal remedy
On 5 June 2024 Mr Grant Kelly made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Mr Kelly advised in the Form F2 Unfair Dismissal Application that he commenced employment with Torbay Retirement Village in November 2023 and that his dismissal took effect on 4 June 2024.
On the information provided by Mr Kelly, he worked for Torbay for approximately 7 months. Torbay raised the jurisdictional objection that Applicant did not complete the minimum employment period as it submitted that Mr Kelly commenced employment on 18 March 2024. If this was correct, Mr Kelly was employed for 2 months, 2 weeks and 3 days.
Sections 382 and 383 of the Act require an Applicant to be ‘an employee who has completed a period of employment with his or her employer of at least the minimum employment period’. The minimum employment period is 6 months if the former employer does not identify as a small business. A small business is when the employer has fewer than 15 employees. In the case that an employer is a small business, the minimum employment period is 12 months:
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.
A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers.
Commission staff sought further information from Mr Kelly about whether he had served the minimum employment period:
(a)On 11 July 2024, an email was sent to Mr Kelly in relation to the minimum employment period above and he was required to respond by 18 July 2024. An SMS was also sent to Mr Kelly telling his that an important email had been sent.
(b)On the same day, Mr Kelly responded regarding the fairness of his dismissal and his dissatisfaction with the work he was directed to complete by Torbay.
(c)On 12 July 2024 Mr Kelly provided a further opportunity to provide a response or evidence to support his submission that he had served the minimum employment period. Mr Kelly was required to respond by 4:00pm on 18 July 2024.
(d)On the same day, Mr Kelly responded again only addressing the fairness of the dismissal and his dissatisfaction and did not address the minimum employment period.
(e)Later on 12 July 2024 an email was sent notifying Mr Kelly that as he had not provided any evidence to support his submission that he had served the minimum employment period, I would now consider whether the application had any prospects of success under s.587(1)(c) of the Act.
(f)On the same day Mr Kelly responded suggesting that the Commission should have called him rather than sending emails. He again did not address the minimum employment period or provide evidence that he served it.
To date Mr Kelly has not provided any further information that supports his eligibility to make the application.
Section 587
The relevant provisions in s.587 of the Act are 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 prospects of success.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law, is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] and the cases cited therein).
Does Mr Kelly’s application have any reasonable prospects of success?
The Commission cannot consider the fairness of Mr Kelly’s dismissal until it is satisfied that he is eligible to make an unfair dismissal claim.
The information provided by Mr Kelly on his Form F2 application indicated that he was eligible to make an unfair dismissal application. Mr Kelly indicated that he was employed for approximately 7 months, however he was not specific about the date that the employment started. On the dates supplied by Torbay, Mr Kelly was employed for approximately two and a half months.
Mr Kelly was invited by correspondence to provide information that could show that he had in fact completed the minimum employment period. Mr Kelly did not provide any response that was consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about any facts that could change the outcome of her application.
I am satisfied that Mr Kelly has been able to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587.
For these reasons I am satisfied that Mr Kelly’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss his application on the Commission’s own initiative by the facility available in s.587(3)(a).
I have separately made an order to this effect (PR777044).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR777043>
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