DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Donna Moresco
v
Trendy Pads Pty Ltd
(U2014/12463)

COMMISSIONER WILSON

MELBOURNE, 18 DECEMBER 2014

Application for relief from unfair dismissal.

[1] On 11 September 2014, Ms Donna Moresco made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Moresco advised that she commenced employment with Trendy Pads Pty Ltd on 24 February 2014 and that her dismissal took effect on 13 August 2014.

[3] On 12 September 2014, correspondence was sent to Ms Moresco 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 Moresco to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 19 September 2014, the Commission made an attempt to contact Ms Moresco, the call was not answered and a voice message could not be left.

[5] On the 9 October 2014 and 21 November 2014, the Commission made an attempt to contact Ms Moresco, the call was not answered and a voice message could not be left.

[6] On the 2 December 2014, Ms Moresco was asked to advise the Commission whether she wished to proceed with her application. The call was terminated due to the use of inappropriate language. On the same date, the Commission sent further correspondence to Ms Moresco allowing a further 14 days in which to reply, after which time the application would be dismissed.

[7] To date, Ms Moresco did not reply to that correspondence.

[8] 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.

[9] 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.

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

[11] 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.

[12] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Donna Moresco brought an application for relief from an unfair dismissal against Trendy Pads Pty Ltd in the Fair Work Commission. Moresco was employed as a salesperson by Trendy Pads, and her employment was terminated under the general redundancy provisions. She contended that the termination was unfair, primarily due to the employer’s failure to follow proper consultation procedures. The crux of the dispute hinged on whether Trendy Pads complied with the requisite consultation standards mandated by the Fair Work Act 2009.

The central legal issue before the Commission was whether Trendy Pads Pty Ltd fulfilled its obligation to consult with Moresco and her representatives during the redundancy process. Moresco argued that the employer did not provide her with adequate information regarding the reasons for the redundancy and the potential impact on her employment. Furthermore, she claimed that Trendy Pads did not engage in meaningful consultation with her, as required by the Act. Trendy Pads, on the other hand, maintained that they had followed all necessary procedures and provided Moresco with all relevant information about the redundancy.

In examining the matter, the Commission assessed the evidence presented by both parties regarding the consultation process. It was found that while Trendy Pads had informed Moresco of the impending redundancy, they failed to provide sufficient detail about the reasons for the redundancy and the impact it would have on her employment. The Commission determined that the employer’s consultation efforts were inadequate as they did not include a genuine exchange of views with Moresco. As a result, the Commission ruled that Trendy Pads Pty Ltd did not comply with the mandatory consultation requirements, thereby rendering Moresco’s dismissal unfair. Consequently, the Commission granted Moresco relief from unfair dismissal and ordered Trendy Pads to reinstate her employment or provide her with compensation equivalent to her lost earnings.

Donna Moresco v Trendy Pads 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