Roopa Singh v DB Schkner Summary

[2023] FWC 1286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Roopa Singh
v

DB Schkner

(U2023/3762)

COMMISSIONER BISSETT

MELBOURNE, 31 MAY 2023

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

On 1 May 2023 Ms Roopa Singh 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).

Ms Singh advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with DB Schkner on 20 March 2023 and that their dismissal took effect on 12 April 2023.

On 9 May 2023 the Commission contacted Ms Singh on their nominated telephone number. The Commission advised Ms Singh that they had not served the minimum employment period and that further information would be emailed to Ms Singh’s email address. Ms Singh understood and advised that they would review the correspondence from the Commission.

Later that day the Commission emailed correspondence to Ms Singh’s nominated email address advising Ms Singh that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed Ms Singh 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 22 May 2023 the Commission attempted to contact Ms Singh on their nominated telephone number. Ms Singh requested a call back at a different time. Later that day, the Commission attempted to call Ms Singh again on their nominated telephone number, however, Ms Singh could not be reached. A voicemail message was left requesting that Ms Singh contact the Commission to discuss their application as it is at risk of being dismissed.

To date Ms Singh 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 Ms Singh 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 Ms Singh 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

CaseChat Overview and Summary

Roopa Singh filed an application for unfair dismissal against DB Schkner with the Fair Work Commission, claiming that her employment, which began on 20 March 2023, was terminated unfairly on 12 April 2023. The Commission assessed Singh's application, noting that she had not met the minimum employment period required under the Fair Work Act 2009 to bring such an application. Consequently, the Commission notified Singh that her application was unlikely to succeed and provided her an opportunity to furnish additional evidence to support her claim that she had met the employment period. Despite multiple attempts to contact Singh, including telephone calls and emails, she did not respond, and the Commission proceeded to dismiss her application under section 587 of the Act.

The primary legal issue in this case was whether Singh had completed the minimum employment period required under section 382 of the Fair Work Act to be eligible to lodge an unfair dismissal claim. The Act stipulates that an employee must have served a minimum employment period of six months if the employer is not considered a small business employer, or one year if the employer is a small business employer. Given that Singh's employment duration was less than six months, the Commission had to determine if she qualified to pursue the claim. The secondary issue was whether the Commission was justified in dismissing the application under section 587 for lack of reasonable prospects of success due to Singh's failure to provide the necessary evidence or respond to the Commission's communications.

In its decision, the Commission determined that Singh had not completed the requisite minimum employment period. Consequently, the application did not have a reasonable prospect of success, leading the Commission to dismiss the application under section 587(1)(c) of the Fair Work Act. The Commission concluded that the application was not made in accordance with the Act and lacked reasonable prospects of success because Singh did not meet the eligibility criteria for lodging an unfair dismissal claim. Additionally, the Commission found that Singh did not respond to its attempts to contact her to provide additional evidence or clarify her position, further justifying the dismissal of her application.

The Fair Work Commission dismissed the unfair dismissal application by Roopa Singh against DB Schkner due to her failure to meet the minimum employment period requirement under the Fair Work Act. The Commission noted that Singh had not provided sufficient evidence to demonstrate that she had completed the requisite employment period, and she did not respond to the Commission's communications. Consequently, the application was dismissed without further proceedings.

Roopa Singh v DB Schkner

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established