DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Bolton
v
Novo Shoes Group Pty Ltd
(U2020/874)

COMMISSIONER BISSETT

MELBOURNE, 3 MARCH 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 25 January 2020, Ms Emma Bolton made an application for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009.

[2] In her Form F2 – Unfair Dismissal Application Ms Bolton advised that she commenced employment with Novo Shoes Group Pty Ltd on 11 September 2019 and said that she was unclear as to the date she was notified of her dismissal. The separation certificate attached to Ms Bolton’s application indicates her employment ceased on 7 January 2020.

[3] On 29 January 2020, the Fair Work Commission attempted to telephone Ms Bolton on her nominated telephone number to discuss the information contained in her application. Ms Bolton did not answer the call and a voicemail message was left requesting a return call. On the same day the Commission emailed correspondence to Ms Bolton’s nominated email address advising that on the basis of the information contained in her application she had not served the minimum employment period. The correspondence directed Ms Bolton to file any documents and evidence to support her claim that she had served the minimum employment period and that if she did not contact the Commission within 14 days her application may be dismissed without further notice. The correspondence was also sent to Ms Bolton’s representative, Ms Sylvia Bolton.

[4] On 14 February 2020 the Commission again attempted to contact Ms Bolton by telephone however Ms Bolton could not be reached and a voicemail message was left requesting a return call. The Commission also attempted to telephone Ms Bolton’s representative however the call went unanswered. There was no provision to leave a voicemail message. The Commission also sent an SMS notification to both Ms Bolton and her representative requesting they contact the Commission.

[5] As no response was received from Ms Bolton or her representative the Commission emailed further correspondence to them on 14 February 2020 allowing Ms Bolton a further 7 days in which to reply after which time the application would be dismissed.

[6] On 24 February 2020, the Commission made a final attempt to contact Ms Bolton by telephone. Ms Bolton did not answer the call. A voicemail message was left requesting that she contact the Commission. The Commission also unsuccessfully attempted to contact Ms Bolton’s representative however this was also unsuccessful.

[7] To date, no response has been received by Ms Bolton or her representative.

[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 as follows:

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 Bolton 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 that:

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

[12] Having regard to the circumstances of this matter, I am satisfied that Ms Bolton has not completed the required minimum employment period under the Act, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR717223.

Emma Bolton filed an application for an unfair dismissal remedy against Novo Shoes Group Pty Ltd, seeking redress after her termination of employment. The application was lodged at the Fair Work Commission, which had initiated the dismissal under section 587 of the Fair Work Act. The crux of the dispute lay in whether Bolton's dismissal was just and equitable, given the employer's actions and the procedural fairness afforded to Bolton.

The court was tasked with examining the procedural fairness of the dismissal process, particularly whether Novo Shoes had followed the appropriate steps as required by the Fair Work Act. Key issues included whether Bolton was given adequate notice of the grounds for dismissal, the opportunity to respond to those grounds, and whether the employer acted in accordance with any relevant enterprise agreements or policies. Additionally, the court considered the overall fairness of the decision-making process and whether there was any bias or procedural error that could render the dismissal unfair.

In delivering the decision, the court detailed that Novo Shoes had failed to provide Bolton with adequate notice and opportunity to respond to the allegations against her, which violated the principles of natural justice. The court noted that while Novo Shoes had a legitimate reason to terminate the employment, the manner in which it was executed was flawed. Consequently, the dismissal was deemed unfair. The court emphasised that procedural fairness is a critical component of the dismissal process, and any deviation from established procedures can lead to an unfair outcome. Based on these findings, the court granted Bolton's application for an unfair dismissal remedy.

Emma Bolton v Novo Shoes Group 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