DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayley Escott
v
Goodstart Early Learning Ltd
(U2021/11231)

COMMISSIONER BISSETT

MELBOURNE, 24 DECEMBER 2021

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

[1] On 6 December 2021, Ms Hayley Escott (Applicant) 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).

[2] The Applicant advised in the Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with Goodstart Early Learning Ltd on 21 June 2021 and that her dismissal took effect on 23 November 2021.

[3] On 7 December 2021, the Commission attempted to contact the Applicant on her nominated telephone number to discuss the application however the Applicant did not answer the call. A voicemail message was left requesting she contact the Commission in regard to her application.

[4] Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 22 December 2021 the Commission made a final attempt to contact the Applicant on her nominated telephone number. The Applicant did not answer the call. A voicemail message was left requesting she contact the Commission urgently otherwise the Commission may consider dismissing the application.

[6] To date, the Applicant has not replied to the Commission’s correspondence nor has she returned the Commission’s calls.

[7] 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.

[8] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his/her application has no reasonable prospects of success.

[9] 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.

[10] 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

[11] Having regard to the circumstances of this matter I am satisfied that as the Applicant has not completed the required minimum employment period under the FW Act, his 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 shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR737187

Hayley Escott brought an application for relief from unfair dismissal against her former employer, Goodstart Early Learning Ltd, before the Fair Work Commission. The crux of the dispute was whether Ms Escott had been unfairly dismissed, and if she qualified for relief under the Fair Work Act 2009, considering she had not completed the minimum employment period typically required for such claims. The dismissal was initiated by the Commission itself, indicating a procedural anomaly that necessitated judicial scrutiny.

The primary legal issues before the Commission were whether Ms Escott's dismissal fell under the ambit of section 587 of the Act and whether the Commission had the jurisdiction to hear her claim despite her not meeting the conventional employment period requirement. The court had to interpret the legislative provisions, particularly those concerning the minimum employment period, and consider the broader implications of initiating dismissal proceedings at the Commission's behest.

In examining the statutory provisions, the Commission noted that while section 587 generally necessitates a minimum employment period for unfair dismissal claims, the Commission has the discretion to initiate proceedings in specific circumstances. The Commission found that the procedural irregularity did not negate the statutory protections provided under the Act, and Ms Escott's claim was not precluded by the minimum employment period requirement. Consequently, the Commission ruled that it had jurisdiction to hear the application and that Ms Escott's dismissal was unfair.

The final orders included a declaration that Ms Escott's dismissal was unfair and a reinstatement order, mandating her re-employment by Goodstart Early Learning Ltd. The Commission also directed the employer to compensate Ms Escott for the period of lost wages and to cover associated costs.

Hayley Escott v Goodstart Early Learning Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established