Kathrine Waugh v Australia Post
[2024] FWC 1300
•21 MAY 2024
| [2024] FWC 1300 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kathrine Waugh
v
Australia Post
(U2024/3698)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 21 MAY 2024 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 28 March 2024, Ms Kathrine Waugh, made two applications to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). At 4:51PM, Ms Waugh lodged a Form F2 – Unfair Dismissal Application (Form F2), along with supporting documentation, via email. The Form F2 was missing the first 3 pages. This 4:51PM application was processed and given the matter number U2024/3698. It is the subject of this decision. At 5:09PM, Ms Waugh lodged another Form F2, along with supporting documentation, through the Commission’s Online Lodgement Service. The 5:09PM application was also processed and given the matter number U2024/3627. The two Form F2s, with the exception of the 3 missing pages from the 4:51PM Form F2, appear to be identical in substance and the same supporting documents were attached on both instances.
Ms Waugh advised in her Form F2 that she commenced employment with Australian Postal Corporation on 18 December 2023 and that her dismissal took effect on 13 March 2024. On the basis of the information provided in her Form F2, Ms Waugh had not served the minimum employment period.
On 7 April 2024, the Commission emailed two pieces of correspondence to Ms Waugh’s nominated email address regrading matter U2024/3698. Firstly, Ms Waugh was advised that she had not answered all the questions in the Form F2 and that she would need to complete Questions 1.1 through to 1.6, provide her details and the contact details for the Respondent (the employer) and return the form to the Commission. Secondly, Ms Waugh was advised that she would also need to provide her employment dates in order to determine if she had served the minimum employment period. Ms Waugh was given until 21 April 2024 to provide the required information or else, she was warned, her application would very likely be dismissed.
On 8 April 2024, the Commission attempted to contact Ms Waugh on her nominated telephone number. A voicemail message was left requesting that Ms Waugh contact the Commission. Later that day, the Commission emailed correspondence to Ms Waugh’s nominated email advising her that she had made two dismissal applications and that she could only continue with one. Ms Waugh was advised that she would need to choose which application she would like to continue with by 22 April 2024.
As no response was received from Ms Waugh, on 22 April 2024 the Commission attempted to contact her on her nominated telephone number. A voicemail message was left requesting that Ms Waugh contact the Commission.
On 26 April 2024, Ms Waugh called the Commission. During the call Ms Waugh confirmed her employment dates and that she had not met the minimum employment period. The Commission also advised Ms Waugh that she had made two dismissal applications, when she could only make one. Ms Waugh advised that she did not want to discontinue her applications via telephone and stated that she would send an email to the Commission to confirm discontinuance. Ms Waugh was advised that, in the event that she did not make contact with the Commission her matters would likely be dismissed, and a decision issued and published to the Commission website. Ms Waugh has not made any further contact with the Commission.
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 prospects of success.
As the material before the Commission indicates Ms Waugh has not completed the required minimum employment period under the FW Act, I am persuaded the 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 with this decision.
DEPUTY PRESIDENT
[1] PR775120.
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