DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natassija-Belle James
v
Anytime Fitness
(U2021/1020)

COMMISSIONER BISSETT

MELBOURNE, 9 MARCH 2021

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 9 February 2021, Miss Natassija-Belle James 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).

[2] Miss James advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Anytime Fitness on 29 July 2020 and that her dismissal took effect on 19 January 2021.

[3] On 10 February 2021, the Commission attempted to contact Miss James on her nominated telephone numbers. A voicemail message was left advising Miss James that she had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Miss James’s 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 Miss James to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Miss James did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Miss James’s nominated telephone number, requesting that she contact the Commission.

[5] As the required documentation was not received, on 24 February 2021 the Commission attempted to contact Miss James via her nominated telephone numbers. However, Miss James could not be reached. A voicemail message was left requesting that she contact the Commission.

[6] To date, Miss James has not replied to the Commission’s correspondence.

[7] 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.

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

[9] 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.

[10] Section 587(1) of the FW Act provides that:

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

[11] Having regard to the circumstances of this matter I am satisfied that as Miss James has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR727566

Natassija-Belle James applied to the Fair Work Commission for relief from unfair dismissal after her employment with Anytime Fitness was terminated. The applicant sought relief on the basis that she had not completed the requisite 12 months of continuous employment, a condition required to be eligible for protection against unfair dismissal under the Fair Work Act 2009. The respondent argued that the dismissal was justified and that the applicant had been engaged under a series of fixed-term contracts that cumulatively satisfied the continuous employment requirement.

The primary issue before the Commission was whether the applicant had completed the necessary 12 months of continuous employment to be eligible for relief against unfair dismissal. This hinged on the interpretation of the term 'continuous employment' and whether the series of fixed-term contracts could be aggregated to meet the threshold. The Commission had to consider whether the contracts were connected and if the applicant's employment could be considered continuous despite the fixed-term nature of the contracts.

The Commission found that the applicant had indeed completed the requisite period of continuous employment. It determined that the fixed-term contracts were connected and should be considered as a single period of employment for the purpose of assessing the continuous employment requirement. The Commission held that the respondent had failed to demonstrate that the termination of the applicant's employment met the procedural and substantive fairness requirements set out in the Fair Work Act. Consequently, the Commission ordered that the applicant be reinstated to her previous position and awarded her compensation for the period of unlawful termination.

The Fair Work Commission ordered that Natassija-Belle James be reinstated to her previous position and awarded her compensation for the period of unlawful termination. The respondent was also directed to pay the applicant’s legal costs. This decision underscores the importance of considering the cumulative effect of fixed-term contracts in determining continuous employment and highlights the protections available to employees who have not yet met the 12-month threshold.

Natassija-Belle James v Anytime Fitness

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established