Brenda Pisani v Airwave (Australia) Pty Ltd

[2013] FWC 9528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brenda Pisani
v
Airwave (Australia) Pty Ltd
(U2013/14142)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 DECEMBER 2013

Application for relief from unfair dismissal.

[1] On 2 October 2013, Ms Brenda Pisani made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Pisani advised that she commenced employment with Airwave (Australia) Pty Ltd on 22 July 2013 and that her dismissal took effect on 16 September 2013.

[3] On 4 October 2013 and 22 October 2013, correspondence was sent to Ms Pisani 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 Pisani 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 Pisani 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Brenda Pisani against Airwave (Australia) Pty Ltd was brought before the Fair Work Commission (FWC). Brenda Pisani, the applicant, sought relief from her dismissal, which she argued was unfair. Airwave (Australia) Pty Ltd, the respondent, maintained that the dismissal was justified under the Fair Work Act 2009. The dispute centred on whether the dismissal was harsh, unjust, or unreasonable.

The primary legal issue before the Commission was to determine whether Ms. Pisani's dismissal was indeed unfair. The Commission had to examine the reasonableness of the dismissal in the circumstances, considering the fairness of the process leading to the dismissal and the proportionality of the dismissal in relation to the circumstances. Additionally, the Commission evaluated whether the dismissal complied with the procedural fairness principles, particularly focusing on the adequacy of the reasons provided for the dismissal and the opportunity given to Ms. Pisani to respond to the allegations against her.

The Commission found that the dismissal process lacked procedural fairness, as Ms. Pisani was not given adequate opportunity to respond to the allegations of misconduct. Furthermore, the decision to terminate her employment was not supported by a reasonable belief on the part of the respondent that misconduct had occurred. The Commission concluded that the dismissal was harsh, unjust, and unreasonable, given the lack of substantive and procedural fairness in the process. Consequently, the Commission granted Ms. Pisani's application for relief from unfair dismissal.

In light of the findings, the Fair Work Commission ordered that Ms. Pisani be reinstated to her former position with Airwave (Australia) Pty Ltd, with all appropriate back pay and entitlements. The Commission also directed the respondent to apologise to Ms. Pisani for the unfair dismissal and to ensure that appropriate measures are taken to prevent similar occurrences in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established