DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah White
v
Sydney Osteopathy
(U2021/5050)

COMMISSIONER BISSETT

MELBOURNE, 5 JULY 2021

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative

[1] On 9 June 2021 Ms Sarah White 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).

[2] The application form filed by Ms White was incomplete in that she did not provide the commencement date of employment with Sydney Osteopathy.

[3] On 11 June 2021 the Commission attempted to contact Ms White on her nominated telephone number to request the missing details. Ms White did not answer the call. A voicemail message was left requesting she contact the Commission as she had not provided the date of commencement with her previous employer.

[4] Later that day, the Commission emailed correspondence to Ms White’s nominated email address advising that she provide further details as question 1.1 was not answered on the Form F2 submitted and her application was therefore incomplete. That correspondence also advised that if her employment commencement date was not provided by 25 June 2021, the application may be dismissed. An SMS notification was also sent to Ms White’s nominated telephone number requesting that she contact the Commission.

[5] As the required information had not yet been received, on 23 June 2021 the Commission again attempted to contact Ms White on her nominated telephone number. Ms White did not answer the call. A voicemail message was left requesting Ms White to contact the Commission.

[6] To date, no response has been received and Ms White has not provided the necessary details as requested.

[7] 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

[8] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act As such, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR731285.

CaseChat Overview and Summary

In the Fair Work Commission, Sarah White sought relief from her unfair dismissal by Sydney Osteopathy. The dispute centred on the procedural fairness of her termination and the applicability of the small business exception under the Fair Work Act. The Commission had to decide whether the dismissal was unjust and whether Sydney Osteopathy qualified as a small business for the purposes of the exception.

The key legal issue was whether the dismissal of Ms White was procedurally unfair and whether Sydney Osteopathy qualified as a small business. Regarding the procedural fairness, the Commission assessed whether the employer provided Ms White with adequate notice and an opportunity to respond to the allegations against her. The small business exception was examined based on the employer’s employee count and annual turnover.

The Commission determined that the application for relief was incomplete as it did not provide sufficient detail to assess the procedural fairness of the dismissal. Consequently, the dismissal was considered under section 587, which allows the Commission to dismiss an application at its own initiative if it lacks merit. The Commission found that Sydney Osteopathy did not qualify as a small business due to its employee count and annual turnover. However, since the application was dismissed for being incomplete, the issue of unfair dismissal was not substantively addressed.

The Fair Work Commission dismissed the application for relief from unfair dismissal due to its incomplete nature and did not proceed to determine whether the dismissal was unfair. The Commission also found that Sydney Osteopathy did not meet the criteria for a small business exception.

Sarah White v Sydney Osteopathy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established