Sara Broadway v M&G Hotel Group

[2024] FWC 1236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sara Broadway
v

M&G Hotel Group

(U2024/1719)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 MAY 2024

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

On 19 February 2024, Ms Sara Broadway 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 Broadway advised in her Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with M&G Hotel Group on 7 November 2023 and that her dismissal took effect on 13 February 2024.

On 19 February 2024, the Commission attempted to contact Ms Broadway on her nominated telephone number. No contact was made due to an the nominated telephone number being invalid. Later that day the Commission emailed correspondence to Ms Broadway’s nominated email address advising her that, on the basis of the information provided in her Form F2, she had not served the minimum employment period. The correspondence directed Ms Broadway to file any documents or other evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if she did not contact the Commission within 14 days her application may be dismissed without further notice. An SMS notification was also sent to Ms Broadway’s nominated telephone number requesting that she contact the Commission.

As the required documentation was not received, on 4 March 2024 the Commission attempted to contact Ms Broadway on her nominated telephone number. However, she could not be reached as a connection could not be made to her nominated telephone number. The commission tried unsuccessfully to contact Ms Broadway again on 5 and 13 March 2024. To date the Applicant has not replied to the Commission’s attempts to contact her.

Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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 prospects of success.

As the material before the Commission indicates Ms Broadway has not completed the required minimum employment period under the FW Act, I am persuaded the 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 with this decision.

DEPUTY PRESIDENT

[1] PR774914.

Printed by authority of the Commonwealth Government Printer

Sara Broadway applied to the Fair Work Commission for relief from an unfair dismissal against M&G Hotel Group. She claimed that she was dismissed on 13 February 2024, after commencing employment on 7 November 2023. The Commission attempted to contact Ms Broadway to verify the details of her application and confirm whether she had completed the minimum employment period required under the Fair Work Act 2009 (FW Act). Despite multiple attempts to contact her, no response was received, and the Commission was unable to verify the employment period.

The central legal issue before the Commission was whether Ms Broadway had completed the minimum employment period as stipulated in the FW Act. Section 382 of the FW Act protects employees from unfair dismissal if they have completed a certain period of employment. The minimum employment period is six months if the employer is not a small business employer, and one year if the employer is a small business employer. Given that M&G Hotel Group is not a small business employer, Ms Broadway would need to have been employed for at least six months to be protected under the Act.

The Fair Work Commission found that Ms Broadway had not completed the required minimum employment period, as the date of her dismissal did not fall within the requisite timeframe. Consequently, the Commission concluded that her application had no reasonable prospect of success and dismissed it under section 587(1)(c) of the FW Act. The Commission issued an order dismissing the application for relief from unfair dismissal.

The Fair Work Commission dismissed the application for relief from unfair dismissal due to insufficient evidence that Ms Broadway had completed the required minimum employment period under the FW Act. The Commission's decision was based on the fact that they were unable to verify Ms Broadway's employment period despite multiple attempts to contact her.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established