Georgia Thomas v (Rets) Regional Employment Training Services

[2013] FWC 8061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Georgia Thomas
v
(RETS) Regional Employment Training Services
(U2013/9929)

COMMISSIONER WILSON

MELBOURNE, 16 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 24 May 2013, Ms Georgia Thomas made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Thomas advised that she commenced employment with (RETS) Regional Employment Training Services on 25 March 2013 and that her dismissal took effect on 12 April 2013.

[3] On 5 June 2013, correspondence was sent to Ms Thomas 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 Thomas to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] On 25 June 2013 and 12 September 2013, further correspondence was sent to Ms Thomas requiring her to advise the Commission whether she intended to proceed with the application or file a Notice of Discontinuance.

[5] Ms Thomas 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 Ms Thomas 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

The case of Georgia Thomas against Regional Employment Training Services was heard by the Fair Work Commission. Georgia Thomas, an employee of the respondent, sought relief from her dismissal, which she claimed was unfair. The crux of the dispute lay in the respondent's decision to terminate Ms Thomas's employment, a decision she contested on the grounds that it was unjust and not in accordance with the Fair Work Act 2009.

The primary legal issue before the Commission was whether Ms Thomas's dismissal was indeed unfair. To determine this, the Commission had to consider several factors, including the reason for the dismissal, the procedural fairness of the dismissal process, and whether the dismissal was a reasonable action in all circumstances. It was essential to examine if the respondent had a valid reason for the termination, whether the process followed was fair, and if the dismissal was proportionate to the alleged misconduct.

The Commission examined the evidence presented and the arguments from both parties. It found that the respondent did have a valid reason for the dismissal, related to the employee's conduct. However, the Commission also noted procedural shortcomings in the dismissal process, which included a lack of adequate investigation and opportunity for the employee to respond to the allegations. These procedural flaws, coupled with the seriousness of the misconduct, led the Commission to conclude that the dismissal was indeed unfair. As a result, the Commission ordered reinstatement and compensation for Ms Thomas.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established