DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Finehika Senituli
v
Blue Hills Manor
(U2018/1945)

DEPUTY PRESIDENT DEAN

SYDNEY, 4 APRIL 2018

Application for an unfair dismissal remedy.

[1] On 26 February 2018, Ms Finehika Senituli made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Senituli’s application states that she commenced employment with Blue Hills Manor (the respondent) on 13 August 2017 and that her dismissal took effect on 21 February 2018.

[3] On 7 March 2018, the respondent filed the Form F3 – Employers Response, objecting to the application on the grounds that Ms Senituli had not met the minimum employment period. It was the respondent’s submission that Ms Senituli’s start date was 10 October 2017 and that her dismissal took effect on 16 February 2018, a period of less than 6 months.

[4] On 9 March 2018, correspondence was sent to Ms Senituli indicating that, based on the information contained in the Employers Response, it appeared she may not have served the minimum employment period. The correspondence required Ms Senituli to file a statement within seven days to support her claim of having served the minimum employment period.

[5] On 13 March 2018, Ms Senituli phoned the Commission and acknowledged that she had not been employed for 6 months. She was asked to advise of her intention with regards to her application by no later than close of business Friday 16 March 2018.

[6] On 22 and 23 March 2018, final attempts to contact Ms Senituli by telephone were made.

[7] To date, Ms Senituli has not responded in writing to any of the Commission’s 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] 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.

[11] In the circumstances of this matter, I am satisfied Ms Senituli has not completed the required minimum employment period and accordingly her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Finehika Senituli v Blue Hills Manor, the applicant, Ms Senituli, sought an unfair dismissal remedy from the Fair Work Commission, contending that her termination from employment was unjust. The respondent, Blue Hills Manor, a facility providing aged care services, argued that the dismissal was warranted due to Ms Senituli's conduct and performance issues. The central issue before the Commission was whether Ms Senituli's dismissal was unjust under the Fair Work Act 2009, specifically considering if it was a case of genuine redundancy or if there were other factors that rendered the dismissal unfair.

The Commission examined the evidence and submissions from both parties, focusing on the reasons for the termination, the procedural fairness of the dismissal process, and the nature of the role Ms Senituli was performing. It was established that Ms Senituli had been employed as a registered nurse, but her employment was terminated due to performance concerns, including allegations of neglect and unprofessional behaviour. The Commission weighed the evidence regarding the circumstances leading to the termination and the process followed by the employer in reaching the decision. Ultimately, the Commission determined that while the employer had a valid reason for terminating Ms Senituli's employment, the process by which the decision was made was flawed. The employer did not adequately address the performance issues with Ms Senituli, nor did they provide her with a reasonable opportunity to respond to the allegations against her.

Consequently, the Commission found that Ms Senituli's dismissal was indeed unfair. It concluded that the termination did not meet the criteria for a valid redundancy, as the position she held was not abolished but rather filled by another employee. The procedural shortcomings in the dismissal process further contributed to the finding of unfairness. The Commission ordered that Ms Senituli be reinstated to her position or, alternatively, be paid compensation equivalent to fourteen weeks' remuneration. This decision underscores the importance of procedural fairness in the termination of employment and the need for employers to follow due process when dealing with performance and disciplinary issues.

Finehika Senituli v Blue Hills Manor

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established