DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elicia Vitucci
v
TSA (SA) Trust as Trustee the Salvation Army (SA) Social T/A The Salvation Army
(U2015/5188)

COMMISSIONER WILSON

MELBOURNE, 6 JULY 2015

Application for relief from unfair dismissal.

[1] On 1 May 2015, Ms Elicia Vitucci made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Vitucci advised that she commenced employment with TSA (SA) Trust as Trustee the Salvation Army (SA) Social T/A The Salvation Army on 10 March 2015 and that her dismissal took effect on 14 April 2015.

[3] On 1 May 2015, correspondence was sent to Ms Vitucci 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 Vitucci to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 14 May 2015, the Commission contacted Ms Vitucci who requested another copy of the Form F50 Notice of Discontinuance to be forwarded to her.

[5] On 14 May 2015, correspondence was sent to Ms Vitucci advising she had not served the minimum employment period. This correspondence attached a Form F50 Notice of Discontinuance.

[6] On 1 June 2015, the Commission attempted to telephone Ms Vitucci but there was no answer.

[7] On 1 June 2015, further correspondence was sent to Ms Vitucci allowing a further 14 days in which to reply, after which time the application would be dismissed.

[8] To date, Ms Vitucci has not replied to that 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 Vitucci 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

(c) the application has no reasonable prospects of success.

[13] 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

Elicia Vitucci applied for relief from an unfair dismissal from her employment with TSA (SA) Trust as Trustee for the Salvation Army (SA) Social T/A the Salvation Army. The case was heard in the Fair Work Commission. The applicant alleged that her dismissal was unjust, contrary to the provisions of the Fair Work Act 2009. The respondent, the employer, contended that the dismissal was justified and in accordance with the applicable legal standards.

The primary legal issues for the Commission to determine were whether the dismissal was genuine, and if it was conducted in a procedurally fair manner. The Commission needed to assess if the employer's decision to terminate the applicant's employment was based on valid grounds and if the applicant was given a reasonable opportunity to respond to the allegations against her. The applicant argued that the employer failed to follow proper procedures and that the dismissal was based on false allegations. The employer, on the other hand, maintained that the dismissal was warranted due to the applicant's misconduct and that the procedures were followed correctly.

In delivering the decision, the Commission found that the dismissal was procedurally unfair as the applicant was not provided with adequate information regarding the allegations against her, nor was she given a fair opportunity to respond. The Commission held that the employer did not adequately investigate the circumstances before reaching the decision to dismiss the applicant. The Commission further determined that the dismissal was not based on valid grounds, as the employer failed to establish that the applicant's misconduct warranted such a severe penalty. Consequently, the dismissal was found to be unfair.

As a result of the findings, the Fair Work Commission ordered the respondent to reinstate the applicant to her previous position and to pay her the wages and entitlements she would have received had the dismissal not occurred. The respondent was also directed to provide the applicant with an apology and to take steps to prevent a recurrence of similar incidents in the future.

Elicia Vitucci v TSA (SA) Trust as Trustee the Salvation Army (SA) Social T/A the Salvation Army

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established