Mikaela Stevens v Stanmore
[2023] FWC 661
•21 MARCH 2023
| [2023] FWC 661 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mikaela Stevens
v
Stanmore
(U2023/1885)
| COMMISSIONER BISSETT | MELBOURNE, 21 MARCH 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 8 March 2023 Ms Mikaela Stevens 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).
Ms Stevens advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Stanmore on 9 September 2023 and that her dismissal took effect on 3 March 2023. On 10 March 2023 Ms Stevens clarified that her employment had commenced on 9 September 2022.
On 10 March 2023 the Commission attempted to contact Ms Stevens on her nominated telephone number. A voicemail message was left requesting that she contact the Commission regarding her application. The voicemail explained that, on the basis of the information provided, she appeared not to have met the minimum employment period required to make an unfair dismissal application.
Later that day the Commission emailed correspondence to Ms Stevens’ nominated email address advising Ms Stevens that, on the basis of the information provided, she had not served the minimum employment period. The correspondence directed Ms Stevens to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if she did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS was also sent to Ms Stevens requesting she contact the Commission.
That day, Ms Stevens’ mother contacted the Commission on her behalf, advising:
Thank you for your follow up correspondence. I am replying to your query on behalf of my daughter Mikaela.
As you have outlined, the duration between the commencement date and Mikaelas termination date is just short of the required 6 months.
This in itself is part of our basis for submitting this application as we believe the termination date prior to Mikaela’s 6 month probation date was strategically made in an attempt to deem her ineligible for submitting a claim.
If you would grant us the courtesy of reading the application and our justification for the unfair dismissal we would appreciate it.
Prior to commencing full time employment at Stanmore, Mikaela had been employed on a contract basis for 6 months with Westhill Services. The reason Stanmore gave as the reason for terminating her does not make sense based on them knowing her work ethics during this time and then still offered her permanent employment.
We really would appreciate you giving this submission your full consideration.
Thank you for your time.
The matter when then referred to me in my capacity as Practice Leader for Unfair Dismissals at the Commission.
On 14 March 2023 my chambers emailed the Ms Stevens and her mother (as her representative) advising that:
· The Fair Work Act 2009 (FW Act Act) makes clear that, to be eligible for unfair dismissal, a person must have completed at least 6 months service with the employer. The Commission has no discretion in relation to this time period.
· On the information provided Ms Stevens was not employed for at least 6 months (she commenced employment on 29 September 2022 and her employment was terminated with effect on 3 March 2023).
· Because Ms Stevens had not been employed for at least 6 months it was the Commissioner’s preliminary view that her application should be dismissed as it has no reasonable prospect of success.
The email requested any evidence that Ms Stevens had worked for more than 6 months by 4.00 pm Friday 17 March 2023, advising that if no evidence was provided the Commission may dismiss the applicant without further correspondence.
Later that day the applicant’s mother emailed my chambers expressing dissatisfaction with the correspondence. No evidence of employment of more than 6 months was provided.
On 15 March 2023 my chambers emailed Ms Stevens reiterating that the application may be dismissed and a decision to this effect published if evidence of more than 6 months employment was not provided. The email advised that if Ms Stevens no longer wished to pursue her application she should lodge a Form F50 notice of discontinuance or advise so by reply email.
There was no further correspondence from Ms Stevens or her mother.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Ms Stevens has not completed the required minimum employment period.
I acknowledge the submission made on Ms Stevens’ behalf that she believes the termination date was deliberately determined prior to Ms Stevens completing 6 months’ employment to make her ineligible for submitting a claim for unfair dismissal. Certainly the minimum employment period has this effect.
As was explained in the decision of the Full Bench of the Commission in Metropolitan Fire and Emergency Services Board v Duggan,[1] the purpose of the minimum employment period is to:
provide an employer with a period of time to assess a new employee and for the employee to know by the end of the six or 12 month period (depending on whether the employer is a small business employer) whether, on the one hand, their employment will be ongoing and they will be protected from unfair dismissal or, on the other hand, their employment is to be terminated and when such termination will occur. The provisions enable an employer to decide whether or not to dismiss an employee during their minimum employment period without the risk of being subjected to an unfair dismissal claim.
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 Ms Stevens has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
[1] [2017] FWCFB 4878 at [31]
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