Yolande Dubow v Kaur Legal Pty Ltd

[2024] FWC 1559

[2024] FWC 1559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Yolande Dubow
v

Kaur Legal Pty Ltd

(U2024/3914)

DEPUTY PRESIDENT EASTON SYDNEY, 21 JUNE 2024

Application for an unfair dismissal remedy

1. On 5 April 2024 Ms Yolande Dubow made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Ms Dubow indicated in her Form F2 Unfair Dismissal Application that she commenced employment with Kaur Legal Pty Ltd on 3 April 2024 and that her dismissal took effect on 5 April 2024.

1. On the information provided by Ms Dubow, she worked for Kaur Legal for 2 days.

1. A person can only make an unfair dismissal application if they completed the minimum period of employment before they were dismissed – per s.382 and s.383 of the Act. For employees of small business employers (see s.23 of the Act) the minimum employment period is 12 months. For other employees the minimum employment period is 6 months.

1. Ms Dubow does not appear to have completed the lesser minimum employment period of 6 months.

1. Commission staff sought further information from Ms Dubow about whether she had served the minimum employment period:

(a)on 10 April 2024 the Commission contacted Ms Dubow by telephone and advised that she had not served the minimum employment period. Ms Dubow advised she had thought she had submitted a Form F9 Unlawful Dismissal application. Ms Dubow advised she had made a request for legal advice to the Workplace Advice Service and had a consultation on Friday 13 April 2024 and would make a decision after the consultation. The Commission advised that Ms Dubow had submitted a Form F2 Unfair Dismissal application and she had 14 calendar days to make a decision on if she wished to continue.

(b)later that day the Commission emailed correspondence to Ms Dubow’s nominated email address advising her that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Dubow to file any documents/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.

(c)on 29 April 2024 the Commission attempted to contact Ms Dubow again by telephone. However, Ms Dubow could not be reached and a voicemail message was unable to be left.

(d)on 3 May 2024 a final telephone call was made to Ms Dubow. However, Ms Dubow could not be reached and a voicemail message was unable to be left.

(e)on 3 May 2024 the Commission emailed correspondence to Ms Dubow reiterating the jurisdictional issue. That correspondence also warned that if she did not contact the Commission by 6 May 2024 the application may be dismissed without further notice.

1. To date Ms Dubow has not provided the Commission any further information to support her eligibility to make the application.

Section 587

1. The relevant provisions in s.587 of the Act are 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 prospects of success.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application.

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law, is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] and the cases cited therein).

Does Ms Dubow’s application have any reasonable prospects of success?

1. The Commission cannot consider the fairness of Ms Dubow’s dismissal until it is satisfied that she is eligible to make an unfair dismissal claim.

1. The information provided by Ms Dubow on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application. The Form F2 indicates that Ms Dubow was employed for approximately 2 days.

1. Ms Dubow was invited by correspondence to provide information that could show that she had in fact completed the minimum employment period. Ms Dubow did not provide any response that was consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about the facts that could change the outcome of her application.

1. On 14 June 2024, Ms Dubow was also specifically invited to provide submissions by 21 June 2024 on why her matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). Ms Dubow responded, however did not provide any additional relevant information regarding whether she had served the minimum employment period.

1. I am satisfied that Ms Dubow has been able to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587.

1. For these reasons I am satisfied that Ms Dubow’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss her application on the Commission’s own initiative by the facility available in s.587(3)(a).

1. I have separately made an order to this effect (PR776059).

DEPUTY PRESIDENT

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