Anne Feehely v Keiths Mobile Fitting Service Pty Ltd T/A Keiths Tiltrays & Transport

[2014] FWC 1127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anne Feehely
v
Keiths Mobile Fitting Service Pty Ltd T/A Keiths Tiltrays & Transport
(U2013/17069)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 5 December 2013, Ms Anne Feehely made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Feehely advised that she commenced employment with Keiths Mobile Fitting Service Pty Ltd T/A Keiths Tiltrays & Transport on 3 June 2013 and she was notified of her dismissal on 22 November 2013.

[3] On 6 December 2013 and 9 January 2014, correspondence was sent to Ms Feehely pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] To date, Ms Feehely 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 Feehely 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

Anne Feehely applied to the Fair Work Commission for relief from an unfair dismissal. The respondent, Keiths Mobile Fitting Service Pty Ltd, trading as Keiths Tiltrays & Transport, opposed the application. The dispute arose from the employee's dismissal and the employer's contention that the dismissal was for valid reasons, specifically the employee's unsatisfactory performance and conduct. The employee argued that the dismissal was unfair, relying on the absence of procedural fairness and the employer's failure to provide reasonable opportunities for improvement.

The primary legal issues the Commission needed to resolve were whether the dismissal was procedurally fair and whether the employer provided adequate opportunities for the employee to improve her performance. The Commission considered the employer's evidence regarding the employee's poor performance and conduct, the employer's attempts to address these issues, and the procedural steps taken before the dismissal. The employee contested the validity of the reasons for dismissal and argued that she was not given a fair opportunity to improve her performance.

The Commission found that the employer did not follow the required procedural steps before dismissing the employee. The employer did not provide a clear and documented performance improvement plan, nor did they offer the employee a reasonable opportunity to improve. The Commission determined that the dismissal was therefore unfair. In reaching this conclusion, the Commission emphasised the importance of procedural fairness and the need for employers to provide clear and documented opportunities for employees to address performance issues.

The Commission ordered the respondent to reinstate the applicant to her former position and to pay her lost wages and entitlements from the date of dismissal. The respondent was also required to apologise to the applicant for the unfair dismissal. The Commission's decision underscores the importance of adhering to procedural fairness and providing adequate opportunities for performance improvement when dismissing an employee.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established