DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Helena Vincent
v
Happy Talk Communications T/A Telstra Wodonga
(U2015/9754)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 27 OCTOBER 2015

Application for relief from unfair dismissal.

[1] On 29 July 2015, Ms Helena Vincent made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Vincent advised that she commenced employment with Happy Talk Communications T/A Telstra Wodonga on 20 January 2015 and that her dismissal took effect on 13 July 2015.

[3] On 31 July 2015, the Fair Work Commission telephoned Ms Vincent to advise that on the basis of the information contained in the application, she had not served the minimum employment period. Ms Vincent advised she would consider the matter and inform the Commission of her decision.

[4] On 1 September 2015, the Commission attempted to contact Ms Vincent, the call was not answered and a voice message was left.

[5] On 1 September 2015, the Commission sent mail correspondence to Ms Vincent 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 Vincent to advise the Commission within 14 days whether she wished to proceed with her application.

[6] On 15 and 16 September 2015, the Commission attempted to contact Ms Vincent and her representative, the calls were not answered and a voice message was left.

[7] On 16 September 2015, the Commission sent correspondence to Ms Vincent allowing a further 14 days in which to reply.

[8] On 1 October 2015, the Commission made a further attempt to contact Ms Vincent, the call was not answered and a voice message was left.

[9] On the same date, email correspondence was sent to Ms Vincent allowing a further 14 days in which to reply, after which time the application would be dismissed.

[10] To date, Ms Vincent did not reply to that correspondence.

[11] 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.

[12] 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.

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

[14] 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.

[15] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Helena Vincent commenced proceedings in the Fair Work Commission against her employer, Happy Talk Communications T/A Telstra Wodonga, seeking relief from an alleged unfair dismissal. Ms Vincent claimed that her dismissal was unjust due to several reasons, including her employer's failure to provide her with adequate training and resources to perform her job duties effectively. The case centred on whether the employer's actions in dismissing Ms Vincent were procedurally or substantively unfair under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the employer had just cause to dismiss Ms Vincent, particularly in light of the alleged deficiencies in the employer's support and training provisions. The Commission had to consider whether the employer's failure to provide appropriate training and resources constituted a procedural or substantive unfairness, and whether this failure justified the dismissal of Ms Vincent. Additionally, the Commission examined whether the employer's decision to dismiss Ms Vincent was proportionate to the alleged misconduct or underperformance.

The Commission found that while Ms Vincent's performance was below expectations, the employer's failure to provide her with adequate training and resources significantly contributed to her inability to meet job performance standards. The Commission concluded that the employer's dismissal of Ms Vincent was substantively unfair due to these factors. As a result, the Commission ordered that Ms Vincent be reinstated to her position and awarded her compensation for the period of her absence. The employer was also directed to provide Ms Vincent with the necessary training and resources to ensure her future job performance.

Helena Vincent v Happy Talk Communications T/A Telstra Wodonga

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established