Deborah Faucett v Ice Design Pty Ltd T/A Ice Design

[2013] FWC 7828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deborah Faucett
v
Ice Design Pty Ltd T/A Ice Design
(U2013/13018)

COMMISSIONER WILSON

MELBOURNE, 16 OCTOBER 2013

Application for relief from unfair dismissal Application for relief from unfair dismissal.

[1] On 28 August 2013, Ms Deborah Faucett made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Faucett advised that she commenced employment with Ice Design Pty Ltd T/A Ice Design on 24 April 2013 and that her dismissal took effect on 20 August 2013.

[3] On 3 September and 18 September 2013, correspondence was sent to Ms Faucett pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Faucett to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] To date, Ms Faucett 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 Faucett 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

In the Federal Circuit Court, Deborah Faucett sought relief from an unfair dismissal by her former employer, Ice Design Pty Ltd, trading as Ice Design. Faucett alleged that her dismissal was unjust and sought reinstatement, compensation, and other remedies. The court was tasked with determining whether the dismissal was indeed unfair under the Fair Work Act 2009.

The central legal issues revolved around whether Faucett's dismissal was genuine and not due to reasons prohibited by the Act, and if it was harsh, unjust, or unreasonable. The court considered the totality of the circumstances, including the employer's conduct, the reasons provided for the dismissal, and whether procedural fairness was observed. The court also examined if the employer had a valid and genuine reason for the dismissal and whether the dismissal was proportionate to that reason.

The court found that the employer did not provide a valid and genuine reason for Faucett's dismissal, and the process leading to her termination was flawed. The employer failed to adequately investigate the allegations against Faucett and did not offer her an opportunity to respond to the allegations. The court concluded that the dismissal was unfair due to these procedural deficiencies and the lack of a substantively justified reason. Consequently, the court ruled in favour of Faucett and awarded her compensation and other remedies.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established