Rae Corstorphan v S Thomas Health Care Pty Ltd

[2023] FWC 2742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rae Corstorphan
v

S Thomas Health Care Pty Ltd

(U2023/8936)

COMMISSIONER BISSETT

MELBOURNE, 23 OCTOBER 2023

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

On 17 September 2023 Rae Corstorphan (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 S Thomas Health Care Pty Ltd on 28 August 2023 and that their dismissal took effect on 28 August 2023.

On 21 September 2023 the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left advising them that, on the basis of the information provided, they had not served the minimum employment period and asked that the Applicant contact the Commission to advise whether they wish to proceed with the matter. The Applicant was advised that if no response was received by 5 October 2023 the matter may be referred to a member of the Commission and may be dismissed without further notice.

Later that day the Commission sent correspondence to the Applicant’s nominated email address advising them that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed them 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.

As the required documentation was not received, on 3 October 2023 the Commission attempted to contact the Applicant on their nominated telephone number. However, they could not be reached. A voicemail message was left advising that, on the basis of the information provided, they had not served the minimum employment period and requesting that they respond by 5 October 2023 to either discontinue the matter or confirm that they wish to proceed.

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 Rae Corstorphan 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

Printed by authority of the Commonwealth Government Printer

Rae Corstorphan sought relief from the Fair Work Commission (FWC) under the Fair Work Act 2009, alleging unfair dismissal by S Thomas Health Care Pty Ltd. The Applicant claimed to have commenced employment on 28 August 2023 and was dismissed on the same day. The FWC was tasked with determining whether the Applicant had met the minimum employment period requirement under the Act and whether the application was frivolous or vexatious, thereby lacking a reasonable prospect of success.

The primary legal issue was whether the Applicant had completed the requisite minimum employment period to be eligible for protection under the Fair Work Act. The Act stipulates that the minimum employment period is six months if the employer is not a small business, and one year if the employer is a small business. The Applicant's employment period, as stated, was less than six months, raising the question of whether the application should be dismissed due to the absence of a reasonable prospect of success.

The Commissioner concluded that the Applicant had not completed the required minimum employment period, and therefore, the application had no reasonable prospect of success. Consequently, the application was dismissed under section 587(1)(c) of the Fair Work Act, which allows the FWC to dismiss an application if it lacks a reasonable prospect of success. The Commissioner's decision was based on the statutory requirement that the Applicant must have completed the minimum employment period to be protected from unfair dismissal. Given that the Applicant did not meet this requirement and did not respond to the FWC's correspondence, the application was dismissed.

The Fair Work Commission dismissed Rae Corstorphan's application for relief from unfair dismissal due to the Applicant's failure to meet the minimum employment period requirement under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established