Hanna Pasternak v Alliance Auctions Pty Limited
[2023] FWC 542
•6 MARCH 2023
| [2023] FWC 542 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hanna Pasternak
v
Alliance Auctions Pty Limited
(U2023/946)
| COMMISSIONER BISSETT | MELBOURNE, 6 MARCH 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal at the Commission’s initiative under s.587.
On 6 February 2023 Ms Hanna Pasternak (the Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act).
Ms Pasternak advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Alliance Auctions Pty Limited (the Respondent) on 14 November 2022 and that she was notified of her dismissal on 16 January 2023, taking effect on 10 February 2023.
On 8 February the Commission contacted Ms Pasternak on her nominated telephone number and informed her that based on the information provided on the Form F2, it appeared she had not met the minimum employment period required to be eligible for an unfair dismissal application. Ms Pasternak advised she wished to proceed with her application.
Later that day the Commission emailed correspondence to Ms Pasternak’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 Pasternak to file any documents/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.
Two further attempts to contact Ms Pasternak by telephone were made on 21 and 23 February 2023, but there was no answer.
On 23 February 2023 the application was referred to my chambers. That day, my chambers issued email correspondence to Ms Pasternak advising of my preliminary view that the application should be dismissed under s.587 of the FW Act on the basis that it had no reasonable prospect of success due to the minimum employment period not being met. I directed the Applicant to provide advice as to whether she intended to proceed with her application. If she wished to proceed I directed that she provide submissions as to why the application should not be dismissed under s.587 of the FW Act on the basis that it had no reasonable prospects of success due to not meeting the minimum employment period, by 4.00 pm 1 March 2023.
On 1 March 2023 Ms Pasternak contacted the Commission by email. She advised that she wished to proceed with the application and that her employment with the Respondent commenced on 14 November 2022. That email also provided detail of her commencement with the Respondent and her experience during her employment. No evidence was supplied showing the Applicant worked the minimum employment period.
On 2 March 2023 I directed Ms Pasternak to produce evidence that she had completed at least 6 months employment at the time of the dismissal by 4.00 pm 3 March 2023. Ms Pasternak was advised that a decision on her application would be made after that time.
Later that day Ms Pasternak replied to the Commission expressing dissatisfaction with the Respondent, complaining of a breach of contract. Again she failed to provide any evidence as to whether she had met the minimum employment period.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment.
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.
On Ms Pasternak’s own material she is not eligible to make an application for an unfair dismissal remedy. The Commission has no discretion in this matter. The minimum employment period could only be satisfied if she was still employed by the Respondent on 14 May 2023, or in the case of the Respondent being a small business, 14 November 2023. Clearly Ms Pasternak cannot meet the minimum employment requirements. For this reason her application will be dismissed.
If Ms Pasternak believes there has been a breach of contract by the Respondent or some misrepresentation made by the Respondent she should seek legal advice as the Commission does not have jurisdiction to deal with her complaint.
As Ms Pasternak has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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