DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sara Dear
v
First National Real Estate
(U2019/5243)

DEPUTY PRESIDENT DEAN

SYDNEY, 12 JUNE 2019

Application for an unfair dismissal remedy – minimum employment period.

[1] On 9 May 2019, Miss Sara Dear made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Miss Dear’s application states that she commenced employment with First National Real Estate on 5 December 2018 and that her dismissal took effect on 6 May 2019.

[3] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[4] Section 383 of the Act sets out 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.

[5] On 9 May 2019, correspondence was sent to Miss Dear advising her that on the basis of the information contained her the application, it appeared she had not served the minimum employment period. The correspondence required Miss Dear to advise the Commission within 14 days whether she wished to proceed with her application. No response was received from Miss Dear.

[6] On 27 May 2019 further correspondence was sent to Miss Dear providing her a further 7 days to reply. She was advised that a failure to respond may result in her application being dismissed.

[7] On 12 June 2019 the Commission made a final attempt to contact Miss Dear by telephone without success. To date, Miss Dear has not responded to any of the Commission’s correspondence.

[8] Section 587(1) of the Act provides:

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

[9] In the circumstances of this matter, I am satisfied Miss Dear has not completed the required minimum employment period and her application has no reasonable prospects of success.

[10] Consequently, the application is dismissed under s.587(1)(c) of the Act. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Sara Dear v First National Real Estate, the applicant, Sara Dear, sought a remedy for unfair dismissal against her former employer, First National Real Estate. The dispute centred around the minimum employment period required for an unfair dismissal claim under the Fair Work Act 2009. Sara Dear argued that she had been unfairly dismissed, while First National Real Estate contested the validity of her claim on the basis that she had not satisfied the minimum employment period requirement.

The primary legal issue before the court was whether the applicant had been continuously employed by the respondent for the requisite minimum period before her dismissal. Under the Fair Work Act, an employee must have been continuously employed for six months to be eligible for an unfair dismissal remedy. The court had to determine whether Sara Dear met this threshold. This involved examining the dates of her employment and any breaks in continuous service, including whether any of these breaks could be disregarded under the Act.

The court found that Sara Dear had not been continuously employed by First National Real Estate for the required six-month period. The applicant had experienced breaks in her employment, which were not capable of being disregarded under the provisions of the Fair Work Act. Consequently, the court concluded that Sara Dear did not satisfy the minimum employment period requirement for her unfair dismissal claim. The court dismissed the application, finding that Sara Dear was not eligible for a remedy for unfair dismissal.

Sara Dear v First National Real Estate

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established