DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Emma McGuffog
v
Changeovers Pty Ltd
(U2017/2208)

DEPUTY PRESIDENT BULL

PERTH, 10 APRIL 2017

Application for relief from unfair dismissal - minimum employment period not met.

[1] On 28 February 2017, Ms Emma McGuffog made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms McGuffog advised that she commenced employment with Changeovers Pty Ltd on 28 September 2016 and that she was notified of her dismissal on 20 February 2017, being that her employment period with Changeovers Pty Ltd is a period of less than 6 months.

[3] On 28 February 2017, the applicant was contacted by telephone. She was advised that on the basis of the information contained in the application, she had not served the minimum employment period. The applicant advised she would seek legal advice on the matter.

[4] On 2 March 2017 a further phone call was made to Ms McGuffog. She advised she had made an appointment to seek legal advice and would contact the Commission with her decision after the appointment.

[5] On 13 March 2017, correspondence was sent to Ms McGuffog 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 McGuffog to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[6] On 27 March 2017 further correspondence was sent to Ms McGuffog allowing a further 7 days in which to reply, after which time the application would be dismissed.

[7] Further attempts were made to contact Ms McGuffog on 3 and 4 April 2017.

[8] To date, Ms McGuffog has not replied.

[9] Section 382 of the 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 383 of the Act sets out 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.

[11] In the circumstances of this matter, I am satisfied Ms McGuffog has not completed the required minimum employment period and her application has no reasonable prospects of success.

[12] 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

(c) the application has no reasonable prospects of success.

[13] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order (PR591756) to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Ms Emma McGuffog versus Changeovers Pty Ltd, the Fair Work Commission was tasked with considering an application for relief from unfair dismissal. Ms McGuffog, the applicant, argued that her dismissal was unfair due to various reasons, including the absence of a valid reason for her termination. Changeovers Pty Ltd, the respondent, maintained that Ms McGuffog's dismissal was justified and that she did not meet the minimum employment period requirement to apply for unfair dismissal relief. The matter was brought before the Commission under the Fair Work Act 2009, which governs employment rights and protections in Australia.

The primary legal issues before the Commission were whether Ms McGuffog's dismissal was unfair and if she was eligible for relief despite not meeting the minimum employment period. The Commission needed to determine if the respondent's actions were justified under the Act and if Ms McGuffog's employment period was sufficient to warrant relief. Furthermore, the Commission had to consider if the dismissal was related to her protected industrial activities, as claimed by Ms McGuffog.

After thoroughly examining the evidence and arguments presented by both parties, the Commission concluded that Ms McGuffog's dismissal was not unfair. The evidence suggested that the dismissal was due to performance issues and not related to her protected industrial activities. Additionally, the Commission found that Ms McGuffog did not meet the minimum employment period requirement for an unfair dismissal application. Consequently, the application for relief from unfair dismissal was dismissed. As a result, the Commission ruled in favour of the respondent, Changeovers Pty Ltd.

Ms Emma McGuffog v Changeovers Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established