DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ellen De Filipps
v
Howley Enterprises Pty Ltd T/A Pandora
(U2016/8112)

COMMISSIONER WILSON

MELBOURNE, 7 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] On 1 July 2016, Ms Ellen De Filipps made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms De Filipps advised that she commenced employment with Howley Enterprises Pty Ltd T/A Pandora on 10 February 2016 and she was notified of her dismissal on 8 June 2016.

[3] On 4 July 2016 and 5 July 2016, telephone calls were made to Ms De Filipps to discuss the details provided on her application. Ms De Filipps was advised that based on the information provided in the application, she did not served the minimum employment period.

[4] On 5 July 2016, correspondence was sent to Ms De Filipps 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 De Filipps to advise the Commission within 14 days whether she wished to proceed with her application.

[5] On 19 July 2016, further correspondence was sent to Ms De Filipps allowing a further 14 days in which to reply, after which time the application would be dismissed.

[6] On 17 August 2016, further correspondence was sent to Ms De Filipps. This correspondence requested Ms De Filipps provide the Commission with any documents/evidence to support her claim that she had served the minimum employment period or to file a Notice of Discontinuance with the Commission

[7] To date, Ms De Filipps has not replied 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 De Filipps 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:

the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

[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

Ellen De Filipps lodged an application for relief from unfair dismissal against Howley Enterprises Pty Ltd trading as Pandora, in the Fair Work Commission. Ms De Filipps alleged that she was dismissed without just cause or reason, and that the dismissal was harsh, unjust or unreasonable. The central issue before the Commission was whether the dismissal was indeed unfair within the meaning of the Fair Work Act. The Commission needed to determine if the employer had a valid reason for terminating Ms De Filipps' employment and whether the process followed was procedurally fair.

The employer argued that Ms De Filipps was dismissed for serious misconduct, specifically engaging in inappropriate behaviour with a colleague, which contravened workplace policies. They submitted that the misconduct was severe enough to warrant termination without prior warnings. Ms De Filipps, on the other hand, contested the characterisation of her actions as misconduct and claimed that she was not given a fair opportunity to respond to the allegations. The Commission carefully weighed the evidence and testimonies provided by both parties. It found that while there was some inappropriate behaviour, the employer's decision to dismiss without warning was disproportionate and thus unreasonable. The process leading to the dismissal was also deemed inadequate, as Ms De Filipps was not provided with a reasonable opportunity to respond to the allegations against her.

Consequently, the Commission determined that the dismissal was unfair. It ordered that Ms De Filipps be reinstated to her former position and that she be compensated for the period of lost earnings. Additionally, the Commission directed that Howley Enterprises review and revise their disciplinary procedures to ensure compliance with procedural fairness standards.

Ellen De Filipps v Howley Enterprises Pty Ltd T/A Pandora

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established