Patricia Barra v Industrial Decontamination Services Pty Ltd

[2024] FWC 1660

[2024] FWC 1660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Patricia Barra

v

Industrial Decontamination Services Pty Ltd

(U2024/3848)

DEPUTY PRESIDENT EASTON SYDNEY, 25 JUNE 2024

Application for an unfair dismissal remedy

1. On 4 April 2024 Ms Patricia Barra made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). unfair dismissal under Ms Barra advised in the Form F2 Unfair Dismissal Application that she commenced employment with Industrial Decontamination Services Pty Ltd on 14 March 2024 and that her dismissal took effect on the same day. Later correspondence indicated that she commenced employment on 7 November 2023.

1. On the information provided by Ms Barra, she worked for Industrial Decontamination Services Pty Ltd for approximately 4 months.

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. A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers. In Ms Barra’s case it does not matter whether Industrial Decontamination Services Pty Ltd is a small business employer because she does not appear to have completed the lesser minimum employment period of 6 months.

1. Commission staff sought further information from Ms Barra about whether she had served the minimum employment period:

(a)on 9 April 2024 Commission staff attempted to contact Ms Barra on her nominated telephone number. A message was left asking her to call the Commission.

(b)on the same day Ms Barra returned the call. Commission staff advised Ms Barra that, on the face of her application, she had not served the minimum employment period. Ms Barra was sent an email containing information about the minimum employment period and information about how to obtain legal advice. Later that day Ms Barra sent a further email indicating that her employment started on 7 November 2023.

(c)In the 9 April 2024 email Ms Barra was directed to file any documents/evidence to support her claim that she had served the required minimum employment period. Ms Barra was warned that if she did not provide this information within 14 days (23 April 2024) her application could be dismissed without further notice.

(d)Commission staff attempted to contact Ms Barra by telephone on 11 April 2024 and 22 April 2024 however Ms Barra could not be reached. On each occasion a voicemail message was left asking her to a call back to discuss the matter.

1. Ms Barra 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, 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] and the cases cited therein).

Does Ms Barra’s application have any reasonable prospects of success?

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

1. The information provided by Ms Barra on her Form F2 application and later email strongly indicates that she is not eligible to make an unfair dismissal application. Ms Barra's email indicates that she was employed for approximately 4 months.

1. Ms Barra was invited by correspondence to provide information that could show that she had in fact completed the minimum employment period. Ms Barra did not provide any response that was consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about any facts that could change the outcome of her application.

1. On 14 June 2024 Ms Barra was also specifically invited to provide submissions by 21 June 2024 on why her matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). An SMS was also sent to Ms Barra telling her that an important email had been sent. Ms Barra did not respond to this correspondence.

1. I am satisfied that Ms Barra has been able to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587.

1. For these reasons I am satisfied that Ms Barra’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 to this effect (PR776386).

DEPUTY PRESIDENT

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