Kerri Oldham v Heartlands Support Services Summary

[2023] FWC 3079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kerri Oldham
v

Heartlands Support Services

(U2023/9721)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 NOVEMBER 2023

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

On 4 October 2023, Kerri Oldham (the 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).

The Applicant advised in their Form F2 – Unfair Dismissal Application (Form F2) that they commenced employment with Heartlands Support Services (Respondent) during the end of May 2023 and that their dismissal took effect on 4 October 2023.

On 11 October 2023, the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail was left advising the Applicant that they had not served the minimum employment period and requesting that the Applicant contact the Commission. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising them that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents or other evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days their application may be dismissed without further notice.

On 31 October 2023, as the required documentation was not received, the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that they contact the Commission urgently. A final follow up call was made to the Applicant on 16 November 2023. However, the Applicant could not be reached. A voicemail message was left requesting that they contact the Commission with the required documentation, by 17 November 2023, otherwise their application may be dismissed. To date the Applicant has not replied to the Commission’s correspondence.

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.

As the material before the Commission indicates the Applicant has not completed the required minimum employment period under the FW Act, I am satisfied 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] PR768577.

Printed by authority of the Commonwealth Government Printer

Kerri Oldham filed an application with the Fair Work Commission against Heartlands Support Services, seeking relief from an alleged unfair dismissal under the Fair Work Act 2009. The applicant claimed to have commenced employment with the respondent at the end of May 2023, and that the dismissal took effect on 4 October 2023. The Commission contacted the applicant multiple times to request documentation that the minimum employment period had been satisfied. Despite the warnings that failure to provide the required documentation would result in dismissal of the application, the applicant failed to provide any response or documentation to the Commission.

The central legal issue in this matter was whether the applicant had satisfied the minimum employment period requirement as stipulated by the Fair Work Act. Section 382 of the Act protects employees from unfair dismissal only if they have completed the requisite minimum employment period. Under s.383, this period is six months if the employer is not a small business employer, and one year if the employer is a small business employer. The Commission was required to determine if the applicant had satisfied this threshold, and if not, whether the application could proceed under s.587 of the Act.

The Deputy President found that the applicant had not provided any evidence to demonstrate that the minimum employment period had been completed. Given the lack of response to multiple requests for such documentation, and the failure of the applicant to contact the Commission, the Deputy President was satisfied that the application had no reasonable prospect of success. Consequently, the application was dismissed under s.587(1)(c) of the Act for lacking a reasonable prospect of success. An order dismissing the application was made, and the applicant was informed of this outcome.

Kerri Oldham v Heartlands Support Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established