DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Miranda Hardman
v
Pascoe’s Gas Water & Electrical T/A Australian Private Company
(U2019/1958)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 12 JUNE 2019

Application for relief from unfair dismissal – minimum employment period not met – non responsive applicant - application dismissed

[1] On 22 February 2019, Ms Miranda Hardman made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (FW Act).

[2] Ms Hardman advised that she commenced employment with Pascoe’s Gas Water & Electrical T/A Australian Private Company on 18 February 2019 and that her dismissal took effect on 22 February 2019.

[3] On 5 and 15 April 2019 calls were made by the Fair Work Commission (the Commission) to Ms Hardman concerning the minimum employment period, but were not answered. The calls were not returned.

[4] On 9 May 2019 correspondence was sent to Ms Hardman pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Hardman to advise the Commission within 14 days whether she wished to proceed with her application.

[5] On 15 May 2019 a further unsuccessful telephone call was made and then further correspondence was sent to Ms Hardman requiring a response and explanation for her non-responsiveness and that her application would be determined and may be dismissed.

[6] The Commission left voice messages for Ms Hardman on 26 February 2019, 5 April 2019, 15 April 2019, 9, 15, 17, 21 and 24 May 2019. Ms Hardman has not responded to these messages.

[7] To date, Ms Hardman has not replied to any calls or correspondence from the Commission on this application.

[8] 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.

[9] Section 383 of the FW Act sets out the legally required minimum employment period for applications of this type:

“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.”

[10] Unless the minimum employment period has been served, the Commission has no jurisdiction to further hear and determine the application. In the circumstances of this matter, I am satisfied Ms Hardman has not completed the required minimum employment period. Her application has no reasonable prospects of success.

[11] Section 587(1) of the Act provides:

“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

[12] Accordingly, the application is dismissed under section 587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Miranda Hardman, an employee, and Pascoe's Gas Water & Electrical T/A Australian Private Company, her employer. The dispute centred on Hardman's application for relief from an alleged unfair dismissal. The employer contested the application on the basis that Hardman had not satisfied the minimum employment period requirement and had failed to respond to the employer's submissions. The Fair Work Commission was tasked with determining these issues.

The central legal issue before the Commission was whether Hardman had met the minimum employment period requirement for an unfair dismissal claim, which under section 383 of the Fair Work Act 2009 is six months of continuous employment. Additionally, the Commission had to consider whether Hardman's failure to respond to the employer's submissions warranted the dismissal of her application. The employer argued that Hardman had not completed the requisite six months of employment and had not responded to their submissions, which included evidence of the employment period and other relevant matters.

The Commission found that Hardman had not completed the six-month employment period necessary for an unfair dismissal claim, a prerequisite established by legislative provisions. Moreover, the Commission noted that Hardman had not provided a response to the employer's submissions, which included factual and legal arguments pertinent to the application. Given these findings, the Commission concluded that Hardman's application for relief from unfair dismissal did not meet the statutory criteria and was not responsive to the employer's submissions. Consequently, the application was dismissed.

In its decision, the Commission dismissed Hardman's application for relief from unfair dismissal, primarily on the grounds that the minimum employment period had not been met and her application was non-responsive. No further orders were made as the dismissal of the application was deemed sufficient.

Miranda Hardman v Pascoe's Gas Water & Electrical T/A Australian Private Company

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established