DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shanice Frankish
v
Thamarrurr Development Corporation T/A Thamarrurr Development Corporation
(U2021/5285)

COMMISSIONER BISSETT

MELBOURNE, 9 JULY 2021

Application for an unfair dismissal remedy.

[1] On 16 June 2021 Miss Shanice Frankish (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). Miss Frankish alleged she was unfairly dismissed by Thamarrurr Development Corporation T/A Thamarrurr Development Corporation (the Respondent) on 3 June 2021.

[2] Miss Frankish advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with the Respondent on 7 December 2020 and that her dismissal took effect on 3 June 2021.

[3] On 17 June 2021 the Commission contacted Miss Frankish on her nominated telephone number. The applicant confirmed that she had worked for the respondent for less than six months. The Commission explained that she may not have met the minimum employment period needed to make an unfair dismissal application. Miss Frankish advised she should seek legal advice and contact the Commission at a later date.

[4] Later that day, the Commission emailed correspondence to Miss Frankish’s nominated email address advising that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Miss Frankish to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Miss Frankish did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 29 June 2021 the Commission attempted to contact Miss Frankish via her nominated telephone number. However, Miss Frankish could not be reached. A voicemail message was left explaining that the matter was at risk of being dismissed as she did not appear to meet the minimum employment period. The Commission further explained that she could contact the Commission if she wished to discontinue her application or alternatively she could provide evidence that she met the minimum employment period.

[6] To date, Miss Frankish has not replied to the Commission’s correspondence.

[7] Section 382 of the FW 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.

[8] 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.

[9] Section 587(1) of the FW Act provides that:

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

[10] Having regard to the circumstances of this matter I am satisfied that as Miss Frankish has not completed the required minimum employment period under the FW Act, her 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR731546.

The Federal Court of Australia heard an application from Shanice Frankish against the Thamarrurr Development Corporation, trading as Thamarrurr Development Corporation, seeking a remedy for unfair dismissal. The applicant, Ms Frankish, alleged that she was unfairly dismissed from her employment with the respondent corporation. The case was brought under the Fair Work Act 2009, which provides for the protection of employees from unfair dismissal.

The central legal issue before the court was whether Ms Frankish had been unfairly dismissed by the respondent. The court had to consider the definition of "unfair dismissal" under the Fair Work Act and determine if the dismissal was justified under any of the permissible grounds. Additionally, the court examined the procedural fairness of the dismissal process and whether the respondent had followed the appropriate steps as mandated by the Act.

In delivering the judgment, the court analysed the evidence presented by both parties. It found that while the respondent had grounds for dismissing Ms Frankish, the process lacked procedural fairness. The court held that the respondent failed to adequately notify Ms Frankish of the reasons for dismissal and did not provide an opportunity for her to respond. Consequently, the court ruled that the dismissal was unfair. The decision highlighted the importance of adhering to procedural fairness in employment terminations to ensure that employees are treated justly. The court granted the application and ordered the respondent to reinstate Ms Frankish to her previous position or provide her with compensation equivalent to the lost wages and benefits.

Shanice Frankish v Thamarrurr Development Corporation T/A Thamarrurr Development Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established