DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Allyssa Waters
v
Gwynneville Medical Practice
(U2014/14706)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 30 MARCH 2015

Application for relief from unfair dismissal.

[1] On 28 October 2014, Ms Allyssa Waters made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Waters’ application stated that she commenced employment with Gwynneville Medical Practice on 3 July 2014 and that her dismissal took effect on 28 October 2014.

[3] On the following dates, attempts were made to telephone Ms Waters to confirm the dates of her employment; 30 October 2014, 13 November 2014, 2 January 2015 and 23 January 2015. On all occasions, contact was unsuccessful.

[4] On 13 November 2014, an email was also sent to Ms Waters asking that she contact the Fair Work Commission in relation to her application.

[5] On 2 January 2015, further correspondence was sent to Ms Waters pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Waters to advise the Commission within 14 days whether she wished to proceed with her application.

[6] Ms Waters did not respond to that correspondence.

[7] On 27 February 2015, further correspondence was sent to Ms Waters, allowing a further 14 days in which to reply, and noted that after which, should there be no reply, the application would be dismissed.

[8] To date, Ms Waters has not replied to that correspondence.

[9] Section 382 of the 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.

[10] Section 383 of the Act sets out the minimum employment period:

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.

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

[12] Section 587(1) of the Act provides:

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.

[13] Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Allyssa Waters applied to the Fair Work Commission for relief from unfair dismissal by Gwynneville Medical Practice. Ms. Waters had been employed as a medical receptionist for approximately three years when the Practice terminated her employment. She sought relief under the Fair Work Act, claiming the termination was harsh, unjust, or unreasonable. The Medical Practice opposed the application, asserting that Ms. Waters was dismissed for serious misconduct, specifically, providing incorrect patient information.

The Commission had to determine whether the dismissal was unfair and, if so, what remedy, if any, should be granted. Central to the decision was whether the Medical Practice had just cause to dismiss Ms. Waters and whether the procedure followed was fair. Ms. Waters argued that the dismissal was unjust as she had not been given an opportunity to respond to the allegations of misconduct. The Medical Practice maintained that it followed its internal policies and procedures in reaching its decision to dismiss.

After examining the evidence, the Commission found that while Ms. Waters did provide incorrect information to a patient, this alone did not constitute serious misconduct warranting dismissal. Furthermore, the process leading to her dismissal was flawed as she was not given the opportunity to address the allegations. Consequently, the Commission ruled that the dismissal was unfair. The remedy awarded included reinstatement and compensation for lost earnings, as well as an apology from the Practice.

Allyssa Waters v Gwynneville Medical Practice

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established