DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayley Avis
v
Lyndell Phillips - Senior Recruitment Specialist
(U2020/10164)

COMMISSIONER BISSETT

MELBOURNE, 11 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 27 July 2020 Mrs Hayley Avis made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mrs Avis advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Lyndell Phillips - Senior Recruitment Specialist on 24 April 2020 and that her dismissal took effect on 9 July 2020.

[3] On 27 July 2020 the Commission attempted to contact Mrs Avis on her nominated telephone number. A voicemail message was left advising Mrs Avis that she had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Mrs Avis’s nominated email address advising Mrs Avis that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Mrs Avis to file any documents/evidence to support her claim that they had served the required minimum employment period. That correspondence also warned that if Mrs Avis did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 7 August 2020 the Commission attempted to contact Mrs Avis via her nominated telephone number. However, Mrs Avis could not be reached. A voicemail message was left advising that the Commission was following up on previous attempts to contact her as she did not appear to meet the minimum employment period, requesting she return the call.

[6] To date, Mrs Avis has not replied to the Commission’s correspondence.

[7] Section 382 of the FW 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.

[8] Section 383 of the FW 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.

[9] Section 587(1) of the FW 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

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

[11] Having regard to the circumstances of this matter I am satisfied that as Mrs Avis has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Hayley Avis against Lyndell Phillips Senior Recruitment Specialist, the applicant, Hayley Avis, sought a remedy for unfair dismissal. The respondent, Lyndell Phillips Senior Recruitment Specialist, was the employer from which Ms Avis claimed to have been dismissed without just cause or reason. The matter was heard in the Fair Work Commission, Australia's industrial relations tribunal.

The primary legal issue before the Commission was whether Ms Avis's dismissal was indeed unfair, as defined under the Fair Work Act 2009. This required the Commission to consider whether Ms Avis had been dismissed, the reason for the dismissal, and whether it was harsh, unjust, or unreasonable. Additionally, the Commission had to determine if the dismissal complied with the procedural fairness requirements as outlined in the Act.

The Fair Work Commission found that Ms Avis was indeed dismissed, and the reasons provided by the respondent were not supported by the evidence. The Commission held that the dismissal was harsh, unjust, or unreasonable due to the lack of procedural fairness and the absence of a valid reason for termination. Consequently, the Commission ruled that the dismissal was unfair and ordered the respondent to reinstate Ms Avis to her previous position and pay compensation for the period of the wrongful dismissal. This included back pay, interest, and any other entitlements that would have accrued during the period of reinstatement.

Hayley Avis v Lyndell Phillips Senior Recruitment Specialist

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established