Nicole Byron v Gardiner Summary

[2023] FWC 1814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicole Byron
v

Gardiner

(U2023/5776)

COMMISSIONER BISSETT

MELBOURNE, 25 JULY 2023

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

On 28 June 2023 Nicole Byron (the Applicant) 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).

The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Gardiner on 16 January 2023 and that their dismissal took effect on 30 June 2023.

On 1 July 2023, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents or other evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice.

On 3 July 2023, the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left requesting that they urgently contact the Commission as the employment dates provided indicate that the minimum employment period has not been met.

As the required documentation was not received, on 17 July 2023 the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that they urgently contact the Commission as the information provided in the application suggests that the minimum employment period has not been met. This voicemail message also warned that the matter is at risk of being dismissed if the Applicant does not contact the Commission.

To date the Applicant has not replied to the Commission’s correspondence.

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 the Applicant has not completed the required minimum employment period.

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 the Applicant has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER
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CaseChat Overview and Summary

Nicole Byron sought a remedy for unfair dismissal against her former employer, Gardiner, under section 394 of the Fair Work Act 2009. The Applicant alleged that her dismissal on 30 June 2023 was unfair, having commenced her employment with Gardiner on 16 January 2023. The Fair Work Commission considered whether the Applicant had served the minimum employment period necessary to be protected from unfair dismissal under the Act. The Commission noted that, based on the information provided by the Applicant, the minimum employment period had not been met, and issued correspondence to the Applicant requesting further evidence. Despite multiple attempts to contact the Applicant, she did not respond to the Commission’s requests for documentation to support her claim. As a result, the Commission concluded that the application had no reasonable prospect of success and dismissed it under section 587(1)(c) of the Act.

The primary legal issue in this matter was whether the Applicant had completed the minimum employment period required to be protected from unfair dismissal under the Fair Work Act 2009. The Commission had to determine whether the Applicant had served at least six months of continuous employment, as Gardiner was not a small business employer. Given the information provided, it was apparent that the Applicant had not met the minimum employment period. The Commission further had to consider whether the Applicant’s failure to provide the necessary documentation in response to its requests meant that the application had no reasonable prospect of success. Ultimately, the Commission concluded that the application should be dismissed as it did not meet the statutory requirements.

The Fair Work Commission determined that the Applicant had not completed the minimum employment period required to be protected from unfair dismissal under the Fair Work Act 2009. The Commission noted that the Applicant had not provided any documentation or other evidence to support her claim that she had served the required minimum employment period. Given the information provided in the application and the Applicant’s failure to respond to the Commission’s requests for further evidence, the Commission was satisfied that the application had no reasonable prospect of success. Consequently, the Commission dismissed the application under section 587(1)(c) of the Act, as it did not meet the statutory requirements.

The Fair Work Commission dismissed the application for unfair dismissal brought by Nicole Byron against Gardiner, as the Applicant had not completed the required minimum employment period under the Fair Work Act 2009. The Commission’s decision was based on the information provided in the application, the Applicant’s failure to provide any supporting documentation in response to the Commission’s requests, and the conclusion that the application had no reasonable prospect of success. As a result, the Commission dismissed the application under section 587(1)(c) of the Act.

Nicole Byron v Gardiner

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established