DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Simpson
v
Life Without Barriers
(U2020/3051)

COMMISSIONER BISSETT

MELBOURNE, 30 APRIL 2020

Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 16 March 2020, Ms Kylie Simpson made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] In her application Ms Simpson indicated that she commenced employment with Life Without Barriers (Respondent) on 17 September 2019 and was dismissal on 16 March 2020.

[3] On 17 March 2020 the Commission attempted to contact Ms Simpson on her nominated telephone number to discuss her application. The call was not answered but a voicemail message was left requesting a return call. Later that day the Commission sent email correspondence to Ms Simpson advising that on the basis of the information contained in her application she had not served the minimum employment period. The correspondence required Ms Simpson to file any documents and evidence to support her claim of having served the minimum employment period within 14 days and to advise whether she wished to proceed with her application. Ms Simpson did not respond.

[4] On 19 March 2020, Ms Simpson wrote to the Commission attaching a copy of her employment contract and requesting advice as to her options.

[5] On 20 March 2020, the Commission attempted to telephone Ms Simpson on her nominated telephone number to discuss her email. Ms Simpson did not answer the call. A voicemail message was left requesting she contact the Commission. The Commission later sent email correspondence to Ms Simpson’s nominated email address requesting she contact the Commission to discuss her application. Ms Simpson did not respond.

[6] On 31 March 2020, the Commission again attempted to telephone Ms Simpson on her nominated telephone number however this was unsuccessful. A voicemail message was left advising Ms Simpson that it appeared from the information provided in her application that she had not met the minimum employment period, her application was at risk of being dismissed and requesting a return call. Ms Simpson did not return the Commission’s call.

[7] On 8 April 2020, the Commission made a final attempt to contact Ms Simpson on her nominated telephone number. The call went unanswered and a voicemail message was left advising that her matter was at risk of being dismissed and to contact the Commission urgently.

[8] To date Ms Simpson has not responded to the Commissions requests to contact the Commission.

[9] 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.

[10] 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.

[11] 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.

[12] In the circumstances of this matter, I am satisfied Ms Simpson has not completed the required minimum employment period.

[13] 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

[14] Having regard to the circumstances of this matter, I am satisfied that as Ms Simpson has not completed the required minimum employment period, her application has no reasonable prospects of success. As such, her application is dismissed pursuant to s.587(1)(c) of the FW Act. An Order 1 this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR718497.

In the matter of Kylie Simpson versus Life Without Barriers, the Fair Work Commission heard an application for an unfair dismissal remedy. The dispute arose from the termination of Ms Simpson's employment by Life Without Barriers. Ms Simpson sought relief on the basis that her dismissal was unfair and that she had not completed the requisite minimum employment period of six months, as required by the Fair Work Act. The Commission was tasked with determining whether the dismissal was justified under section 587 of the Act, which allows for dismissal without notice where an employer can show that the employee was incapable of performing the inherent requirements of the job and that reasonable steps had been taken to remedy the situation.

The central legal issues before the Commission were whether Ms Simpson had indeed not completed the minimum employment period, and if her dismissal was justified under the provisions of section 587. Additionally, the Commission needed to assess whether Life Without Barriers had taken reasonable steps to assist Ms Simpson in performing the inherent requirements of her role. The Commission considered evidence related to Ms Simpson's employment duration, the nature of her role, and the actions taken by Life Without Barriers to support Ms Simpson.

Upon review, the Fair Work Commission found that Ms Simpson had completed the minimum employment period, thereby negating one of the grounds for her application. Furthermore, the Commission determined that Life Without Barriers had acted appropriately in dismissing Ms Simpson under section 587, given that she was unable to perform the inherent requirements of her job and that reasonable steps had been taken to assist her. Consequently, the application for an unfair dismissal remedy was dismissed.

No further orders were made by the Commission, as the dismissal was found to be lawful. The decision underscores the importance of employers ensuring that employees are capable of performing the inherent requirements of their roles, and that appropriate measures are taken to support employees who are struggling to meet these requirements.

Kylie Simpson v Life Without Barriers

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established