Lisa Jean Schafferius v Macrae News Pty Ltd

[2024] FWC 1556

[2024] FWC 1556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lisa Jean Schafferius
v

Macrae News Pty Ltd

(U2024/3740)

DEPUTY PRESIDENT EASTON SYDNEY, 21 JUNE 2024

Application for an unfair dismissal remedy

1. On 2 April 2024 Ms Lisa Jean Schafferius made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Ms Schafferius advised in the Form F2 Unfair Dismissal Application that she commenced employment with Macrae News Pty Ltd on 5 March 2024 and did not provide an effective dismissal date.

1. Given that the unfair dismissal claim was filed on 2 April 2024, it seems unlikely that Ms Schafferius served the minimum employment period.

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. A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers. The size of the employer’s business is therefore very important for applicants who were employed for more than 6 months but less than 12 months. In cases requiring consideration of the minimum employment period, the size of the employer’s business can be fertile ground for disagreement.

1. In Ms Schafferius’ case it does not matter whether Macrae News is a small business employer because she does not appear to have completed the lesser minimum employment period of 6 months.

1. Commission staff sought further information from Ms Schafferius about whether she had served the minimum employment period:

(a)on 7 April 2024 the Commission emailed correspondence to Ms Schafferius’ nominated email address advising her that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed her to file any documents/evidence to support her claim that she had served the required minimum employment period. The correspondence also warned that if she did not contact the Commission within 14 days the application may be dismissed without further notice.

(b)on 7 April 2024 the Commission received email correspondence that Ms Schafferius’ nominated email address had been deleted by the owner of the account on 5 April 2024.

(c)on 8 April 2024 the Commission attempted to contact Ms Schafferius on her nominated telephone number. A voicemail message was left informing her that the employment dates provided on her application indicated she had not served the minimum employment period and asked her to contact the Commission as a matter of urgency.

(d)on 9 April 2024 the Commission posted correspondence to Ms Schafferius’s nominated postal address providing a further 14 days to respond.

(e)on 23 April 2024 the Commission attempted to contact Ms Schafferius by telephone to convey the same information as prior correspondence. The voicemail message asked Ms Schafferius to contact the Commission to confirm her intentions, advising that if a response was not provided by close of business on 26 April 2024, her matter may be dismissed.

(f)on 30 April 2024 correspondence that had been posted to Ms Schafferius’ nominated postal address was returned to the Commission, indicating that the postal address was incorrect or that nobody of that name resided at the address. The Commission confirmed that the correspondence had been addressed correctly as per the postal address provided by Ms Schafferius on her application.

1. To date Ms Schafferius has not responded to any correspondence nor provided the Commission any further information to support 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, 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] and the cases cited therein).

Does Ms Schafferius’ application have any reasonable prospects of success?

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

1. The information provided by Ms Schafferius on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application. The Form F2 indicates that Ms Schafferius was employed for about one month.

1. Ms Schafferius was invited by correspondence to provide information that could show that she had in fact completed the minimum employment period. Ms Schafferius did not provide any response that was consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about the facts that could change the outcome of her application.

1. On 5 June 2024 Ms Schafferius was also specifically invited to provide submissions by 12 June 2024 on why her matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). An SMS was also sent to Ms Schafferius telling her that an important email had been sent. Ms Schafferius did not respond to this correspondence.

1. I am satisfied that Ms Schafferius has been able to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587.

1. For these reasons I am satisfied that Ms Schafferius’ 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 to this effect (PR776052).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR776051>