Kyla Jane French v Buderim Menopause Clinic

[2023] FWC 1237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kyla Jane French

Buderim Menopause Clinic

(U2023/3269)

COMMISSIONER SIMPSON

BRISBANE, 26 MAY 2023

Application for an unfair dismissal remedy

On 12 April 2023, Ms Kyla Jane French (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against Buderim Menopause Clinic.

The matter was listed for a conciliation before a Commission Conciliator on 18 May 2023 but the conciliation did not proceed. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 12 June 2023. However, prior to this listing, the parties both filed written material.

The Respondent has raised a jurisdictional objection that the Applicant does not satisfy the minimum employment period, which in this case is a period of 12 months, as the Respondent is a small business employer with less than 15 employees. The Respondent has also raised an objection that the Applicant has not correctly identified the Respondent. Both parties have filed written material in support of their respective positions concerning whether the minimum employment period has been met in this case.

LEGISLATION

Minimum Employment Period

The Act provides the following:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b)one or more of the following apply:

(i)a modern award covers the person;

(ii)an enterprise agreement applies to the person in relation to the employment;

(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

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.

CONSIDERATION

Having considered the material filed it is now apparent that the employment commenced on 2 April 2022 and the Applicant was summarily dismissed on 30 March 2023. The Applicant contests that the minimum employment period is satisfied as the Respondent did not pay outstanding entitlements until a date after the expiration of a period of 12 months. While this appears to be correct, it does not alter the fact that the employment relationship was brought to an end at the initiative of the Respondent on 30 March 2023 with immediate effect. The matter of whether the Respondent did or did not comply with a separate obligation to make good any outstanding entitlement is not to the point.

CONCLUSION

As it is now clear from the further material filed that the application is outside the jurisdiction of the Commission because the minimum employment period has not been met, the Commission has no power to deal with the matter any further and it is dismissed. An Order to this effect is contained in PR762532.

The scheduled directions hearing on 12 June 2023 is vacated.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In Kyla Jane French v Buderim Menopause Clinic, the applicant sought an unfair dismissal remedy under the Fair Work Act 2009. Ms. French alleged she was unfairly dismissed by Buderim Menopause Clinic, a small business employer. The Fair Work Commission considered whether it had jurisdiction to hear the application, specifically whether Ms. French had completed the required 12 months of employment with the Respondent, as mandated for small business employers. The Commission determined that Ms. French's employment had not reached the required 12-month period, rendering the application outside the Commission's jurisdiction.

The legal issues at hand revolved around the jurisdictional requirements of the Fair Work Act, specifically the minimum employment period needed for an unfair dismissal claim to be heard by the Commission. The Respondent argued that Ms. French did not meet the 12-month employment threshold as stipulated for small business employers. The Court had to assess whether the employment period was correctly identified and whether the Commission had the authority to hear the matter based on the statutory criteria.

After considering the evidence and submissions from both parties, the Commission concluded that Ms. French's employment had not lasted for the requisite 12 months. Consequently, the Commission found that it lacked jurisdiction to hear the matter. The Court dismissed the application and vacated the scheduled directions hearing. The Commission's decision was based on the clear statutory requirement that the employment period must be met for an unfair dismissal claim to proceed, and in this case, it was not.

In light of the jurisdictional finding, the Commission issued an order dismissing the application. The scheduled directions hearing on 12 June 2023 was also vacated. This decision underscores the importance of meeting jurisdictional criteria before an unfair dismissal claim can be heard by the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established