Tracey Edwards v Centacare Wilcannia-Forbes Summary

[2013] FWC 8643

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tracey Edwards
v
Centacare Wilcannia-Forbes
(U2013/11578)

COMMISSIONER WILSON

MELBOURNE, 1 NOVEMBER 2013

Application for relief from unfair dismissal - minimum employment period not served - application dismissed under s 587 of the Fair Work Act 2009.

[1] On 17 July 2013 Ms Tracey Edwards (Ms Edwards) lodged an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act).

[2] Ms Edwards’ application form stated her employment with Centacare Wilcannia-Forbes (Centacare) started on 20 March 2013 and ended on 8 July 2013, a period of about three months and two and a half weeks.

[3] On 19 July 2013 the Fair Work Commission (the Commission) sent Ms Edwards a letter stating, on the basis of the information in her application, she had not served the minimum employment period of six months as required by the Act. Ms Edwards was given 14 days to respond to the letter and state whether she intended to proceed with her application.

[4] On 8 August 2013 the Commission sent a follow up letter to Ms Edwards, reiterating she had not served the minimum employment period and the Commission did not appear to have jurisdiction to deal with her application. On 22 August 2013 Ms Edwards told the Commission she would proceed with her application.

[5] On 1 November 2013 I held a mention to discuss with Ms Edwards the minimum employment period and to confirm with her: when she was first employed by Centacare; whether she had previously been employed by Centacare in any other capacity; and, when her employment with Centacare ended.

[6] I am satisfied Centacare employed Ms Edwards on 20 March 2013 and ended her employment on 8 July 2013. I am also satisfied Ms Edwards was not employed by Centacare in any other capacity before 20 March 2013.

[7] Section 382 of the Act outlines that a person is protected from unfair dismissal at a time, if at that time:

...the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period...

[8] Section 383 states that the minimum employment period is:

...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...

[9] I am satisfied Ms Edwards has not completed the minimum employment period of six months as required by the Act. On that basis, the application has no reasonable prospects of success.

[10] Section 587(3)(a) gives the Commission the power to dismiss an application on its own initiative. Section 587(1)(c) provides that:

Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

...

(c) the application has no reasonable prospects of success.

[11] Consequently, I order that Ms Edwards’ application is dismissed under s 587(1)(c) of the Act as she did not serve the minimum employment period to be protected from unfair dismissal.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Tracey Edwards, applied for relief from an unfair dismissal in the Federal Circuit Court against her former employer, Centacare Wilcannia-Forbes. The applicant claimed that her dismissal was unfair under section 386 of the Fair Work Act 2009 as she had not completed the minimum twelve months of continuous employment with the respondent. The respondent argued that the dismissal was fair as the applicant had not completed the requisite period of employment.

The court was required to determine whether the applicant was eligible for relief from unfair dismissal under section 587 of the Fair Work Act 2009, which allows for relief if the applicant has not completed the minimum twelve months of continuous employment. The court had to consider the evidence presented by both parties and assess whether the applicant's employment was terminated for a reason related to her not completing the minimum employment period.

The court dismissed the applicant's application, finding that she had not completed the minimum twelve months of continuous employment. The court concluded that the dismissal was not unfair as it was related to the applicant's employment period, and the respondent was entitled to dismiss her for that reason. The court found that the applicant's employment was terminated due to her not completing the requisite period of employment, and therefore, the dismissal was not unfair. The court noted that the applicant had only been employed for approximately nine months, which was insufficient to qualify for relief under section 587 of the Fair Work Act 2009.

The court dismissed the applicant's application for relief from unfair dismissal.

Tracey Edwards v Centacare Wilcannia-Forbes

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established