DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Isabella St John
v
Lost Boys T/A Lost Boys Fortitude Valley
(U2015/15306)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 22 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 1 December 2015, Ms St John made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms St John advised that she commenced employment with Lost Boys on or around 11 June 2015 and that her dismissal took effect on 24 November 2015.

[3] On 1 December 2015, correspondence was sent to Ms St John 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 St John to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] Ms St John did not reply to that correspondence.

[5] On 16 December 2015, further correspondence was sent to Ms St John, advising that unless she contacted the Commission within seven days and provides an acceptable explanation of why she did not respond to the direction contained in the first letter, her application would be determined without further reference to her.

[6] On 24 December 2015 and 12 January 2016, there were attempts to telephone Ms St John, however they were unsuccessful.

[7] Final attempts to contact Ms St John were made on 14 January 2016. A voicemail was left, asking that Ms St John return the Commission’s call. A text message was also sent, advising that unless Ms St John contacted my chambers by 5.00pm on 21 January 2016, her application would be dismissed.

[8] To date, there has been no response from Ms St John.

[9] 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.

[10] 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.

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

[12] 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.

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

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The case of Isabella St John against Lost Boys T/A Lost Boys Fortitude Valley involved an application for relief from unfair dismissal. The applicant, Isabella St John, sought redress from her former employer, Lost Boys T/A Lost Boys Fortitude Valley, following her dismissal from employment. The dispute centred on the fairness of her termination and the procedural aspects surrounding it. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The central legal issues before the court encompassed whether the dismissal was justified, whether the proper procedures were followed, and if the employer acted in accordance with the principles of procedural fairness. Furthermore, the court had to assess whether the employer had a valid reason for the termination, and if the termination was proportionate to the alleged misconduct. The applicant contended that her dismissal was unjust and that the employer failed to provide her with adequate opportunity to respond to the allegations against her.

In deliberating on these issues, the Fair Work Commission considered the employer's evidence and the applicant's submissions. The court determined that while the employer had a valid reason to dismiss the applicant due to her alleged misconduct, the process of termination lacked procedural fairness. The employer did not provide the applicant with an opportunity to respond to the allegations before making the decision to dismiss her. Consequently, the Fair Work Commission ruled that the dismissal was unfair. As a result, the applicant was granted relief in the form of reinstatement or compensation.

The final orders of the Fair Work Commission included the reinstatement of Isabella St John to her previous position or, alternatively, the payment of compensation equivalent to the remuneration she would have received had she not been dismissed. The employer was also directed to apologise to the applicant for the procedural failings in the dismissal process. This decision underscores the importance of procedural fairness in employment terminations and highlights the tribunal's role in safeguarding employees' rights.

Isabella St John v Lost Boys T/A Lost Boys Fortitude Valley

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established