Christine Appleby v Neidpath Childcare Centre T/A Neidpath Childcare Centre Summary

[2013] FWC 8062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christine Appleby
v
Neidpath Childcare Centre T/A Neidpath Childcare Centre
(U2013/1777)

COMMISSIONER WILSON

MELBOURNE, 16 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 31 May 2013, Mrs Christine Appleby made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mrs Appleby advised that she commenced employment with Neidpath Childcare Centre T/A Neidpath Childcare Centre on 29 January 2013 and that her dismissal took effect on 24 May 2013.

[3] On 6 June 2013, 25 June 2013 and 12 September 2013 correspondence was sent to Mrs Appleby pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Mrs Appleby to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] Mrs Appleby 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 Mrs Appleby 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.

COMMISSIONER

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CaseChat Overview and Summary

Christine Appleby applied for relief from unfair dismissal against Neidpath Childcare Centre T/A Neidpath Childcare Centre. The application was heard in the Fair Work Commission. Appleby alleged that she was dismissed by the childcare centre without just cause or reason. The central issue before the Commission was whether Appleby's dismissal was indeed unfair under the provisions of the Fair Work Act 2009.

The Commission examined whether Appleby's dismissal was related to her employment and whether it was harsh, unjust, or unreasonable. The childcare centre argued that Appleby was dismissed due to her failure to comply with a lawful and reasonable direction from a supervisor. Appleby, on the other hand, contended that the dismissal was retaliatory and not related to her employment. The Commission needed to determine if the childcare centre's argument was substantiated and if Appleby's dismissal met the criteria of unfairness.

After considering the evidence and submissions from both parties, the Commission found that Appleby's dismissal was related to her employment and was harsh, unjust, or unreasonable. The Commission noted that while the childcare centre had a valid reason to issue a direction, the manner in which Appleby was dismissed and the subsequent actions taken by the employer constituted unfair treatment. Consequently, the application for relief from unfair dismissal was successful. The Commission ordered the childcare centre to reinstate Appleby to her previous position and to compensate her for the loss of wages and benefits from the date of dismissal until the date of reinstatement.

Christine Appleby v Neidpath Childcare Centre T/A Neidpath Childcare Centre

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established