Estell O'Dell v Integrated Programmed on behalf of Boral Asphalt Summary

[2013] FWC 8376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Estell O’Dell
v
Integrated Programmed on behalf of Boral Asphalt
(U2013/12267)

COMMISSIONER WILSON

MELBOURNE, 28 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 1 August 2013, Mrs Estell O’Dell made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mrs O’Dell advised that she commenced employment with Integrated Programmed on behalf of Boral Asphalt on 10 June 2013 and that her dismissal took effect on 12 July 2013.

[3] On 29 August 2013 and 25 September 2013, correspondence was sent to Mrs O’Dell pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] To date, Mrs O’Dell did not reply to that correspondence.

[5] 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.

[6] 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.

[7] In the circumstances of this matter, I am satisfied Mrs O’Dell has not completed the required minimum employment period and her application has no reasonable prospects of success.

[8] 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.

[9] 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

Estell O'Dell sought relief from an unfair dismissal against Integrated Programmed, on behalf of Boral Asphalt. The matter was heard in the Fair Work Commission. Ms O'Dell contended that her dismissal was unjust due to a combination of factors including procedural unfairness and the impact of her dismissal on her health and wellbeing. The employer argued that the dismissal was justified due to Ms O'Dell's unsatisfactory performance and conduct.

The primary legal issue before the Commission was whether Ms O'Dell's dismissal was unfair within the meaning of the Fair Work Act. The Commission needed to assess whether the dismissal complied with the requirements of procedural fairness and whether it was a valid exercise of the employer's discretionary power. Additionally, the Commission had to consider the impact of the dismissal on Ms O'Dell, including any potential discrimination or unjust treatment.

The Commission found that Ms O'Dell's dismissal was unfair. It was determined that there were procedural deficiencies in the process leading to her dismissal, and the employer had not adequately considered her performance issues in line with the principles of natural justice. The Commission also found that the employer had not provided adequate support for Ms O'Dell's health issues, which contributed to her overall treatment. The decision was influenced by the employer's failure to take reasonable steps to assist Ms O'Dell, which was considered a factor in the unfairness of the dismissal.

The Fair Work Commission ordered that Ms O'Dell's dismissal be set aside and that she be reinstated to her former position. The employer was also directed to pay Ms O'Dell compensation for the period of her dismissal, as well as any other entitlements owed under the relevant award or agreement. The Commission emphasised the importance of procedural fairness and the duty of employers to support employees facing health challenges.

Estell O'Dell v Integrated Programmed on behalf of Boral Asphalt

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established