Shannon Hogan v Noni B Holdings Pty Limited

[2023] FWC 1209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shannon Hogan
v

Noni B Holdings Pty Limited

(U2023/3382)

COMMISSIONER BISSETT

MELBOURNE, 24 MAY 2023

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

On 20 April 2023 Shannon Hogan (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).

The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Noni B Holdings Pty Limited on Wednesday, 25 January 2023 and that their dismissal took effect on Thursday, 20 April 2023.

On Monday, 24 April 2023 the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left requesting a return phone call.

Later that day the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant 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. An SMS notification was also sent to the Applicant’s nominated telephone number requesting that they contact the Commission.

As the required documentation was not received, on Monday, 28 April 2023 the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting a return phone call.

To date the Applicant 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 the Applicant 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 the Applicant 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

The Fair Work Commission was presented with an application from Shannon Hogan for an unfair dismissal remedy against Noni B Holdings Pty Limited. Hogan alleged that he had been unfairly dismissed from his employment, which commenced on 25 January 2023 and ended on 20 April 2023. The Commission, upon reviewing the application, found that Hogan had not completed the minimum employment period required under the Fair Work Act 2009 (FW Act). This period is either six months for employers who are not small businesses, or one year for small business employers. The Commission subsequently dismissed the application under section 587(1)(c) of the FW Act, as it found that the application had no reasonable prospect of success.

The primary legal issue the Commission needed to decide was whether Hogan had completed the minimum employment period stipulated by the FW Act before his dismissal. This required an examination of the dates of Hogan's employment and the definition of the minimum employment period as outlined in section 383 of the FW Act. Additionally, the Commission had to determine whether the application complied with the procedural requirements of the FW Act and whether it was frivolous or vexatious, which are grounds for dismissal under section 587(1) of the FW Act. After assessing the evidence and the statutory requirements, the Commission concluded that Hogan had not met the minimum employment period, leading to the dismissal of his application.

The Fair Work Commission held that the applicant, Hogan, did not satisfy the minimum employment period required by the FW Act. The Commission found that Hogan had been employed for less than six months, which is the requisite period for non-small business employers. Furthermore, the Commission noted that Hogan had not provided any evidence to substantiate a longer period of employment. As such, the application was deemed to lack a reasonable prospect of success and was dismissed under section 587(1)(c) of the FW Act. The Commission's decision was based on the clear statutory provisions and the absence of any evidence from Hogan that would alter the outcome.

The Fair Work Commission ordered the dismissal of Shannon Hogan's application for unfair dismissal remedy. The dismissal was made on the basis that Hogan had not completed the minimum employment period required by the FW Act, rendering his application without reasonable prospect of success. This decision was in accordance with section 587(1)(c) of the FW Act, which allows for the dismissal of applications that are unlikely to succeed. No further action will be taken on Hogan's application unless additional evidence is provided that demonstrates he had indeed served the requisite minimum employment period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established