DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bronwen Hearn (Marley)
v
Rayell Gifts and Accessories T/A KLP Trading
(U2017/11133)

DEPUTY PRESIDENT DEAN

SYDNEY, 19 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 17 October 2017, Ms Bronwen Hearn made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Following an unsuccessful conciliation on 15 November 2017, the matter was allocated to me to determine Rayell Gifts and Accessories T/A KLP Trading’s (the Respondent) jurisdictional objection that Ms Hearn’s employment did not meet the minimum employment period.

[3] Ms Hearn’s application states that she commenced employment with the Respondent on 10 October 2016 and that her dismissal took effect on 16 October 2017. In its Form F3, Employer Response, the Respondent noted that Ms Hearn commenced employment on 17 October 2016 and that her dismissal took effect on 16 October 201[7]. The Respondent submitted that it is a small business employer with fewer than 15 employees. This was not disputed by Ms Hearn.

[4] On 21 November 2017, correspondence was sent to Ms Hearn and the Respondent directing them to file documentary evidence to support their contention as to the date of commencement of Ms Hearn’s employment. Ms Hearn did not respond to that correspondence.

[5] The Respondent provided a copy of a letter of engagement, payslips and email correspondence between Ms Hearn and Mr Kevin Porter confirming that Ms Hearn commenced employment on 17 October 2016.

[6] Further correspondence was sent to Ms Hearn on 5 December 2017 providing her with an opportunity to provide evidence in support of her contention that her employment with the Respondent commenced on an earlier date. No reply was received from Ms Hearn.

[7] 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.

[8] 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.

[9] 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.

[10] In the circumstances of this matter, I am satisfied that Ms Hearn has not completed the required minimum employment period and her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[11] An Order to this effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Bronwen Hearn (Marley) against Rayell Gifts and Accessories trading as KLP Trading, the applicant sought a remedy for unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was indeed unfair. The applicant alleged that she was dismissed without just cause or excuse, in circumstances that contravened the provisions of the Fair Work Act 2009. The respondent, Rayell Gifts and Accessories, defended the dismissal, asserting that it was carried out in accordance with the applicable laws and company policies.

The court was required to examine whether the dismissal was harsh, unjust, or unreasonable, as per the criteria set out in section 383 of the Fair Work Act. It also needed to consider whether there were valid reasons connected to the applicant's performance or conduct that justified the dismissal. Additionally, the court had to assess if procedural fairness was observed during the dismissal process.

The court found that the applicant's dismissal was unfair. It concluded that the respondent did not adhere to the procedural fairness requirements by not providing the applicant with an opportunity to respond to the allegations against her. Furthermore, the court determined that the dismissal was disproportionate to the alleged misconduct and did not meet the threshold for a valid reason under the act. The court ordered that the dismissal was unfair and mandated the respondent to reinstate the applicant to her previous position and award her compensation.

Bronwen Hearn (Marley) v Rayell Gifts and Accessories T/A KLP Trading

DECISION

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