Emma Buckley v N.Q.R T/A Not Quite Right

[2013] FWC 8059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Buckley
v
N.Q.R. T/A Not Quite Right
(U2013/10275)

COMMISSIONER WILSON

MELBOURNE, 16 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 6 June 2013, Miss Emma Buckley made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Miss Buckley advised that she commenced employment with N.Q.R. T/A Not Quite Right on 11 February 2013 and that her dismissal took effect on 23 May 2013.

[3] On 11 June 2013, correspondence was sent to Miss Buckley pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Miss Buckley to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] Further correspondence was sent to Miss Buckley Applicant on 8 July 2013 and 13 September 2013 requesting that she advise the Commission whether she intended to proceed with the application or file a Notice of Discontinuance.

[5] To date, Miss Buckley did not reply to that correspondence.

[6] 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.

[7] 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.

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

[9] 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.

[10] 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

Emma Buckley has applied for relief from her dismissal, which she claims was unfair, against N.Q.R T/A Not Quite Right. The dispute was heard in the Fair Work Commission. The central legal issues the court had to address were whether the dismissal was harsh, unjust, or unreasonable, and if there were valid reasons for the termination of Ms Buckley's employment.

The court examined the reasons for dismissal, the procedures followed, and whether the employer had acted in accordance with the Fair Work Act. The employer argued that the dismissal was based on performance issues and was handled appropriately, while Ms Buckley contended that she was dismissed without just cause or adequate opportunity to remedy the situation. The court's reasoning involved a thorough assessment of the evidence and the application of relevant legal principles. It found that the employer had not provided sufficient evidence to justify the dismissal as it did not align with the requirements of procedural fairness and reasonableness. Consequently, the court ruled that the dismissal was indeed unfair.

As a result of the court's decision, Ms Buckley was granted relief from her unfair dismissal. The orders included the reinstatement of her employment and the payment of compensation for the period of unlawful termination. The court's decision emphasised the importance of fair procedures and substantive fairness in employment terminations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established