Ms Tanzim Khan v The Trustee for the King's School Foundation

[2024] FWC 2818

[2024] FWC 2818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ms Tanzim Khan
v

The Trustee For The King’s School Foundation

(U2024/8646)

DEPUTY PRESIDENT EASTON SYDNEY, 9 OCTOBER 2024

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. On 25 July 2024 Ms Tanzim Khan made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. For the reasons that follow I am satisfied that Ms Khan’s application has no reasonable prospects of success and should be dismissed.

1. Ms Khan advised in the Form F2 Unfair Dismissal Application that she commenced employment with The Trustee for the King’s School Foundation on 1 January 2024 and that her dismissal took effect on 27 June 2024. On the information provided by Ms Khan, she worked for The Trustee for the King’s School Foundation for 5 months, 3 weeks and 5 days.

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. In Ms Khan’s case it does not matter whether The Trustee for the King’s School Foundation is a small business employer because she does not appear to have completed the lesser minimum employment period of 6 months.

1. Commission staff have tried to contact Ms Khan on the following dates:

·   2 August 2024 by telephone and letter;

·   30 August 2024 by telephone;

·   2 September 2024 by telephone; and

·   9 September 2024 by telephone.

1. On 5 August 2024 Ms Khan telephoned the Commission, Commission staff sought further information from Ms Khan about whether she had served the minimum employment period. Ms Khan confirmed she will get back to us within 3 days as she has contacted legal aid

1. Ms Khan has been on notice of the likely consequences if she does not provide further information that supports her eligibility to make the application.

1. To date Ms Khan has not provided any further information that supports 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. The power under s.587 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] (Bond) and the cases cited therein).

Does Khan’s application have any reasonable prospects of success?

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

1. The information provided by Ms Khan on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application. The Form F2 indicates that Ms Khan was employed for approximately 5 and half months.

1. On 20 September 2024 Ms Khan was also specifically invited to provide submissions on why her matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). No response was received.

1. I am satisfied that Ms Khan has had the opportunity to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587 (see Bond at [15]-[16]).

1. For these reasons I am satisfied that Ms Khan’s 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 dismissing Ms Khan’s application (PR780098).

DEPUTY PRESIDENT

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<PR780097>