DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colleen Hraiki
v
MNI Electrospark All Trades Services Pty Ltd T/A MNI Electrospark All Trades Services Pty Ltd
(U2016/11294)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 30 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 12 September 2016, Ms Colleen Hraiki made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Hraiki advised that she commenced employment with MNI Electrospark All Trades Services Pty Ltd on 25 May 2016 and that her dismissal took effect on 22 August 2016.

[3] On 13 September 2016, a Fair Work Commission staff member spoke with Ms Hraiki about the fact it appeared she had not served the minimum employment period and that the application fee had not been paid. Ms Hraiki confirmed she had only been employed for three months and requested she be given until the following morning to decide what she wanted to do with the matter.

[4] On 15 September 2016, correspondence was sent to Ms Hraiki advising that payment of the application fee had not been made and that in the absence of any advice from her within 14 days, her application may be dismissed.

[5] On 29 September 2016, correspondence was sent to Ms Hraiki noting that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Hraiki to file any documents and evidence to support her having served the minimum employment period within 14 days. It was advised that in the event no documents or evidence were filed, her application may be dismissed.

[6] On 11 October 2016, an attempt was made to contact Ms Hraiki via telephone and a voicemail message was left.

[7] On 19 October 2016, further correspondence was sent to Ms Hraiki allowing a further 14 days in which to reply. She was advised unless advice was received from her within that period, her application would be dismissed.

[8] To date, Ms Hraiki has not replied to any correspondence.

[9] 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.

[10] 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.”

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

[12] 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

[13] 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

The case involves Colleen Hraiki, an employee, and Mni Electrospark All Trades Services Pty Ltd, her former employer. Hraiki applied for relief from unfair dismissal. The Fair Work Commission (FWC) was the tribunal that heard the matter. The central issue before the FWC was whether the dismissal of Hraiki was unfair within the meaning of the Fair Work Act 2009. Specifically, the FWC needed to determine whether the employer had just cause for the termination and if the employer followed a procedurally fair process. The FWC also considered whether the employer had a valid reason for dismissing Hraiki and if the dismissal was proportionate to the reason given.

The FWC examined the employer's evidence and the arguments presented by both parties. It was established that Hraiki had been employed for approximately nine months before her dismissal. The employer cited unsatisfactory performance and a lack of improvement despite warnings as the reasons for termination. Hraiki argued that she was not given adequate opportunities to improve her performance and that the dismissal was harsh, unjust, or unreasonable. The FWC evaluated the employer's records, performance reviews, and communications with Hraiki to assess the validity of the dismissal. It found that while the employer had valid concerns about Hraiki's performance, there were procedural shortcomings in the manner in which the termination was handled. The FWC concluded that the employer did not sufficiently follow a procedurally fair process, leading to an unfair dismissal.

Based on its findings, the FWC determined that the dismissal was indeed unfair. It took into account the employer's failure to provide a clear and fair process for addressing performance issues, as well as the lack of reasonable steps to assist Hraiki in improving her performance. The FWC ordered the employer to reinstate Hraiki to her previous position and to pay her compensation for the period of lost earnings. Additionally, the employer was required to provide a written apology to Hraiki for the unfair dismissal. The decision underscores the importance of procedural fairness in termination processes and the need for employers to support employees in addressing performance issues effectively.

Colleen Hraiki v Mni Electrospark All Trades Services Pty Ltd T/A Mni Electrospark All Trades Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established