Joanna Mitchell v Douglass Hanly Moir Pathology Pty Limited

[2024] FWC 2967

[2024] FWC 2967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joanna Mitchell
v

Douglass Hanly Moir Pathology Pty Limited

(U2024/8554)

DEPUTY PRESIDENT EASTON SYDNEY, 25 OCTOBER 2024

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. On 23 July 2024 Ms Joanna Mitchell made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. For the reasons that follow I am satisfied that Ms Mitchell’s application has no reasonable prospects of success and should be dismissed.

1. Ms Mitchell advised in the Form F2 Unfair Dismissal Application that she commenced employment with Douglass Hanly Moir Pathology Pty Limited on 23 January 2024 and that her dismissal took effect on 27 June 2024. On the information provided by Ms Mitchell, she was employed for 5 months and 4 days.

1. Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines the minimum employment period:

“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.”

1. Commission staff have tried to contact Ms Mitchell on the following dates:

·   31 July 2024 by letter;

·   22 August 2024 by telephone;

·   5 September 2024 by telephone.

1. Commission staff sought further information from Ms Mitchell about whether she had served the minimum employment period and Ms Mitchell has been on notice of the likely consequences if she does not provide further information that supports her eligibility to make the application.

1. To date Ms Mitchell has not provided any further information that supports her eligibility to make the application.

Section 587

1. 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.”

1. 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. The power under s.587 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] (Bond) and the cases cited therein).

Does Ms Mitchell’s application have any reasonable prospects of success?

1. The Commission cannot consider the fairness of Ms Mitchell’s dismissal until it is satisfied that she is eligible to make an unfair dismissal claim.

1. The information provided by Ms Mitchell on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application. The Form F2 indicates that Ms Mitchell was employed for approximately 5 months.

1. Ms Mitchell was invited to provide information that could show that she had in fact completed the minimum employment period. Ms Mitchell did not provide any response.

1. On 25 September 2024 Ms Mitchell was also specifically invited to provide submissions on why her matter should not be dismissed under ss. 587(1)(a) or 587(1)(c).

1. I am satisfied that Ms Mitchell has had the opportunity to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587 (see Bond at [15]-[16]).

1. For these reasons I am satisfied that Ms Mitchell’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 her application on the Commission’s own initiative by the facility available in s.587(3)(a).

1. I have separately made an order dismissing Ms Mitchell’s application (PR780619).

DEPUTY PRESIDENT

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