Tabitha Deng v Ingham Enterprises Pty Ltd

[2023] FWC 650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tabitha Deng
v

Ingham Enterprises Pty Ltd

(U2023/1440)

COMMISSIONER BISSETT

MELBOURNE, 17 MARCH 2023

Application for an unfair dismissal remedy

On 22 February 2023 Mrs Tabitha Deng 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).

Mrs Deng advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Ingham Enterprises Pty Ltd on 3 October 2022 and that her dismissal took effect on 13 February 2023.

On 24 February 2023 the Commission sent correspondence to Mrs Deng’s nominated email address advising Mrs Deng that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Mrs Deng to file any documents or other evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if she did not contact the Commission within 14 days the application may be dismissed without further notice.

On 24 February 2023, Mrs Deng emailed the Commission advising that she transferred to Ingham Enterprises on 3 October 2022 but had been working for them from around July 2022 through an employment agency called APG. Mrs Deng provided documents to show the date she received her welcome letter and confirmation of assignment from APG in July 2022. Mrs Deng also provided an email from Ingham Enterprises regarding an offer of employment on 3 October 2022.

On 1 March 2023 the Commission attempted to contact Mrs Deng to discuss the email she had sent on 24 February 2023. Mrs Deng could not be reached. A voicemail message could not be left.

On 3 March 2023 Ingham Enterprises replied to the Commission’s courtesy letter of 24 February 2023 to advise Mrs Deng had not been dismissed and they were in discussions with her regarding her return to work.

Later that day the Commission attempted to contact Mrs Deng on their nominated phone number. Mrs Deng could not be reached. A voicemail message could not be left. An email was sent to Mrs Deng asking her to call the Commission to discuss her case.

On 9 March 2023, the Commission contacted Mrs Deng by phone and asked her to clarify if her employment via APG was acknowledged by Ingham Enterprises as a continuation of her employment when she was employed directly by Ingham Enterprises. Mrs Deng could not confirm and started to detail the events of her dismissal. The Commission explained that Mrs Deng would have to prove she has met the minimum period of employment before the dismissal case could be dealt with and asked her to confirm if she wished to proceed or discontinue her case. Mrs Deng did not provide a clear answer. Mrs Deng had named the United Workers Union as her representative on her application however did not provide the full name of a union representative. The Commission asked her to confirm if they were representing her and if she had spoken to them about her dismissal case. Mrs Deng provided new contact details for the union and said she would call them that day to get some advice.

On 13 March 2023, the Commission attempted to contact Mrs Deng by phone on their nominated telephone number but there was no answer or option to leave a voicemail.

To date Mrs Deng 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 Mrs Deng 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 Mrs Deng 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

In the matter of Tabitha Deng versus Ingham Enterprises Pty Ltd, the applicant, Mrs Tabitha Deng, sought a remedy for unfair dismissal under the Fair Work Act 2009. The proceedings were brought before Commissioner Bisset at the Fair Work Commission. Mrs Deng alleged that she was dismissed from her employment with Ingham Enterprises Pty Ltd on 13 February 2023, after commencing employment with the company on 3 October 2022. The primary issue for determination was whether Mrs Deng had completed the minimum employment period as required by the Fair Work Act, and consequently, whether her application for unfair dismissal had a reasonable prospect of success.

The court considered the statutory requirements under the Fair Work Act, which mandates that an employee must have completed a minimum employment period to be protected from unfair dismissal. The minimum employment period is defined as six months if the employer is not a small business employer, and one year if the employer is a small business employer. In this case, the court had to ascertain whether Mrs Deng had completed the requisite employment period. Mrs Deng provided evidence of her employment history, including documentation from an employment agency, APG, and an offer of employment from Ingham Enterprises. Despite these submissions, the Commission found that Mrs Deng had not conclusively demonstrated that she had completed the required minimum employment period. Furthermore, the Commission noted that Mrs Deng had not engaged with the proceedings as required, and had failed to confirm her ongoing interest in the case. This non-compliance further weakened the prospects of her application.

In light of the evidence and the statutory requirements, the court concluded that Mrs Deng had not completed the minimum employment period, and as such, her application for unfair dismissal had no reasonable prospect of success. Accordingly, the application was dismissed under section 587(1)(c) of the Fair Work Act. The Commission emphasized the importance of meeting the statutory prerequisites for protection against unfair dismissal and noted the need for applicants to engage fully with the proceedings. The Commission's decision underscores the necessity for applicants to substantiate their claims with adequate evidence and to participate actively in the legal process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established