Amber Luyt v Hospitality Marketing Concepts T/A Priority Privilege

[2013] FWC 7572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amber Luyt
v
Hospitality Marketing Concepts T/A Priority Privilege
(U2013/12150)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 30 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 1 August 2013, Ms Amber Luyt made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Luyt advised that she commenced employment with Hospitality Marketing Concepts T/A Priority Privilege in May 2013 and that her dismissal took effect on 1 August 2013.

[3] On 7 August and 22 August 2013, correspondence was sent to Ms Luyt 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 Luyt to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] To date, Ms Luyt did not reply to that correspondence.

[5] 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.

[6] 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.

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

[8] 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.

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

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Amber Luyt applied for relief from an unfair dismissal in the Fair Work Commission, arguing that her dismissal by Hospitality Marketing Concepts T/A Priority Privilege was unjust and should be overturned. The dispute centred around the termination of Luyt's employment and her contention that the reasons provided for her dismissal were not genuine or fair.

The legal issues before the Commission were whether the employer had just cause to dismiss Luyt and whether the dismissal process was procedurally fair. Luyt argued that the employer failed to provide valid reasons for her dismissal and that the process did not comply with the requirements of the Fair Work Act. The employer, on the other hand, asserted that the dismissal was justified due to performance issues and that the process followed was appropriate.

The Commission considered the evidence presented by both parties, including witness testimonies and documentary evidence. It found that the employer did not adequately demonstrate that Luyt's dismissal was based on valid reasons or that the process was procedurally fair. The employer's evidence was not sufficient to substantiate the claims made against Luyt, and there were procedural shortcomings in the dismissal process. As a result, the Commission concluded that the dismissal was unfair and ordered that Luyt be reinstated to her position, with appropriate back pay and compensation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established