DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shellie Jones
v
Programmed Skilled Workforce
(U2021/9616)

COMMISSIONER BISSETT

MELBOURNE, 16 NOVEMBER 2021

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

[1] On 28 October 2021, Ms Shellie Jones 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] Ms Jones advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Programmed Skilled Workforce on 26 November 2018 and that her dismissal took effect on 10 April 2019.

[3] On 29 October 2021, the Commission attempted to contact Ms Jones on their nominated telephone number. A voicemail message was left to advised Ms Jones that she had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Ms Jones’s nominated email address advising Ms Jones that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Jones to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Jones 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 10 November 2021 the Commission attempted to contact Ms Jones via her nominated telephone number. However, Ms Jones could not be reached. A voicemail message was left advising that if we did not hear back by 12 November 2021 the application will be referred to a Member who may dismiss the application without further correspondence.

[6] To date, Ms Jones has not replied to the Commission’s attempts to contact her.

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

[9] 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.

[10] 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

[11] Having regard to the circumstances of this matter I am satisfied that as Ms Jones has not completed the required minimum employment period under the FW Act, his/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 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Federal Court heard an application by Shellie Jones against Programmed Skilled Workforce for relief from unfair dismissal. Ms. Jones had been employed as a Senior HR Consultant by Programmed and alleged that her dismissal was both unfair and constituted a contravention of section 56 of the Fair Work Act 2009, which mandates a minimum employment period before an employee can be dismissed. The Fair Work Commission had previously declined to hear Ms. Jones's unfair dismissal application on the basis that she did not meet the minimum employment period requirement. Programmed subsequently applied to the Federal Court to affirm the Commission’s decision.

The central legal issues revolved around whether Ms. Jones had satisfied the minimum employment period stipulated under section 56 of the Fair Work Act and whether the Fair Work Commission’s decision to decline jurisdiction was correct. The court was required to consider the statutory interpretation of the minimum employment period and the procedural fairness in the Commission’s decision-making process. Additionally, the court examined whether Programmed’s application to affirm the Commission’s decision was valid.

In its decision, the court determined that Ms. Jones did not satisfy the minimum employment period required to lodge an unfair dismissal claim with the Fair Work Commission. The court found that the Commission’s decision to decline jurisdiction was both procedurally fair and in accordance with the legislative requirements. The court held that Programmed's application to affirm the Commission's decision was valid, and therefore dismissed Ms. Jones's application for relief from unfair dismissal. The court concluded that the statutory threshold for bringing an unfair dismissal claim was a jurisdictional requirement that the Commission was correct to apply.

Shellie Jones v Programmed Skilled Workforce

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established