Janelle Warren v Officeasy Pty Ltd T/A McLernons Business Base
[2023] FWC 1930
•7 AUGUST 2023
| [2023] FWC 1930 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Janelle Warren
v
Officeasy Pty Ltd T/A McLernons Business Base
(U2022/11175)
| COMMISSIONER SCHNEIDER | PERTH, 7 AUGUST 2023 |
Application for an unfair dismissal remedy
On 22 November 2022, Ms Janelle Warren (the Applicant) made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy.
The Applicant alleges that she has been unfairly dismissed from her employment with Officeasy Pty Ltd T/A McLernons Business Base (the Respondent).
The Applicant seeks compensation.
The Respondent objects to the application on the grounds that the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC).
Background
Factual background
The factual background of the matter is somewhat disputed and is summarised below:
· The Applicant commenced her employment with the Respondent on 8 February 2019.
· The Applicant worked in the Respondent’s sales team alongside others.
· The terms and conditions of the Applicant’s employment were in accordance with the General Retail Industry Award 2020.
· It is agreed between the parties that the Applicant and a fellow member of the sales team (the Coworker) had interpersonal difficulties.
· The Respondent received a complaint from the Coworker regarding the Applicant’s behaviour on 10 November 2022.
· The Respondent held a meeting with the Applicant, at close of business on 11 November 2022. This meeting concerned the complaint, and the Applicant was issued a first and final warning.
· The Respondent submits that, upon a review of evidence, it determined that the conduct of the Applicant was serious and warranted immediate termination.
· The Applicant’s employment was terminated for alleged serious misconduct, on 14 November 2022.
Procedural background
The Applicant made this application for unfair dismissal on 22 November 2022.
The Applicant in her Form F2, when prompted to confirm how many employees were employed at her workplace at the time of dismissal, indicated that the Respondent may employ under 15 employees.
The Respondent also asserts that it is a small business within the meaning of the Act.
The Respondent objects to the application on the grounds that the Applicant was dismissed for serious misconduct and that the dismissal was in accordance with the SBFDC.
The matter was then subject to a Hearing of the evidence before the Commission.
At the Hearing, the Applicant gave evidence on her own behalf.
Mr Wayne Goode (Mr Goode), a friend of the Applicant who has some interaction with the workplace in question, also provided evidence on her behalf.
The following witnesses provided evidence or statements for the Respondent:
· Mr Franklin Jose (Mr Jose) – Internal Accountant.
· Ms Siobhan Hopkinson (Ms Hopkinson) – General Manager.
· Mr Peter McLernon (Mr McLernon) – Director.
Submissions
Respondent
The Respondent was aware of issues between the Applicant and the Coworker.
The Respondent supplied a document, alongside its response to the Application, seemingly written by the Coworker. This document details the Coworker’s allegations, regarding the professional and interpersonal issues between herself and the Applicant, including:
· Aggressiveness from the Applicant through online and telephone communication.
· Exclusion from conversations; the Applicant frequently ignores the Coworker’s attempts at conversation and excludes her from conversations with others.
· The Applicant not informing the Coworker of incoming calls or screening the calls for necessary information prior to transferring them to the Coworker. The Coworker states this causes irritation in clients.
· The Applicant allocating orders away from the Coworker, without approval, through the company’s system.
· The Applicant yelling and being confrontational towards the Coworker in the office.
· Negative comments made by the Applicant regarding the Coworker which were overheard in the office.
· The Coworker’s suspicion that the Applicant had damaged and moved some of her belongings in the office.
The Respondent received a written complaint from the Coworker, on 10 November 2022, following another verbal altercation with the Applicant.
In the complaint, the Coworker states that the Applicant had yelled at her, putting her down, in front of the team.
Following receipt of the complaint, the Respondent brought the Applicant in for a meeting and handed her a final warning.
The Respondent submits that the interview was an opportunity for the Applicant to respond to the warning and that it encouraged her to do so.
The Respondent submits that it allowed the Applicant time over the weekend to respond to the warning, to determine how to proceed, but the Applicant elected not to respond.
The Respondent submitted that the Applicant was terminated for serious misconduct which occurred in the workplace when the Applicant, through Microsoft Teams Chat (Teams), made violent and threatening comments regarding the Coworker in messages to a fellow staff member (the Teammate).
The Respondent concedes that it did not provide the Applicant with the evidence of the alleged behaviour at the time of the meeting. The Respondent submits it did not provide evidence at the meeting because it had no obligation to do so and notes that the Applicant would have been aware of her own Teams chat.
The Respondent submitted that, once information in the Teams messages had come to light, there was no prospect of an on-going employment relationship between the parties and, as a result, it dismissed the Applicant for serious misconduct, early on the following Monday.
The Respondent provided the below transcript of the Teams chat between the Applicant and the Teammate in support of their decision to terminate her employment with immediate effect:
Applicant (12.17pm): “put her on the clock. 12.17 she goes to lunch”.
Applicant (12.42pm): “fyi 12.47 she should be back lol”.
Teammate (2.08pm): “someone had a sook we left haha”.
Applicant (2.08pm): “of course she fkn did”.
Teammate (2.08pm): “what a joke aye”.
Applicant (2.09pm): “ohhhh shes a fucking hypocritical cunt. Who did she whinge to – sib?”.
Teammate (2.09pm): “badly man I might put screws in her tires. Sibb.”
Applicant (2.10pm): “hahaha did Sib say something to you?”.
Teammate (2.10pm): “yeah she called me and was like do I kno where you are I said nah im on lunch ahha”
Applicant (2.11pm): “well I sat at the kitchen table and when Sib walked in, I said “seeing assomeone takes 40min, I thought I’d take 20” she just said “yep your entitled to it””.
Applicant (3.42pm): “fk I just wanna stab her”.
Teammate (3.47pm): “come here”.
Applicant (3.50pm): “dont answer her back. Let her feel the icyness (bad karma my arse). Maybe she’ll leave on her own accord”.
Teammate (3.50pm): “I wont haha”.
Applicant (3.50pm): “yep – just leave her HANGING”.
Applicant (4.37pm): “JUST NOTICED SHE’S HID HER CRAP AT THE DOOR BEHIND THE SIGN HAHAHA”.
Teammate (4.37pm): “hahahahahaha”.
Applicant (4.37pm): “must be the ghosts thats in here at night doesn’t like that tacky shit”.
Teammate (4.40pm): “no shit haha”.
Applicant (4.40pm): “think a crystal may get smashed one night……”
Applicant (4.50pm): “bet she runs outta here tonight hahaha”.
Applicant (4.53pm): “don’t say a word if the cunt says goodbye haha”.
Teammate (4.56pm): “nah I won’t. its not 5.”
Applicant (4.58pm): “annnnnnnnnnnd a 43 min lunch break”.
The Respondent is of the position that the conduct displayed by the Applicant in the Teams chat was serious misconduct and warranted the summary dismissal of the Applicant’s employment with the Respondent.
The Respondent explained that the Coworker, who is allegedly being discussed by the Applicant and the Teammate in the above messages, accidentally came across the Teams chat when a hard copy was left on the office printer.
The Respondent’s General Manager, Ms Hopkinson, explained that she had printed the Teams transcript in preparation to discuss its content with the owner of the business, Mr McLernon, when the Coworker came across the document on the printer.
At the hearing, Ms Hopkinson confirmed the below:
·On 10 November 2022, the Coworker made a complaint about the Applicant’s behaviour and alleged that the Applicant had been bullying and acting in an unprofessional manner towards her.
·The Respondent, on 11 November 2022, carried out a review of the Teams chat between the Applicant and the Teammate. The content of this chat is outlined above.
·The Respondent considered the evidence from the Teams chat as proof that the Applicant had been engaged in misconduct towards a fellow employee.
·The Coworker had found a copy of the Teams transcript on the printer and was distressed and upset after seeing the nature of the comments made by the Applicant and the Teammate.
The Respondent submits that it has complied with the SBFDC and provided a copy of a SBFDC Checklist that relates to the dismissal.
The Respondent denies any allegations of preferential treatment towards the Coworker, noting that it provided the Applicant with bonuses and the like throughout her employment.
The respondent submits that the Applicant was resentful towards the Coworker in question due to a range of professional differences including pay.
The Respondent provided a statement from Mr McLernon, stating that Mr Goode’s involvement in the workplace was minimal and his evidence was largely opinion, inferring that it lacks context.
The Respondent made submissions, and provided evidence, regarding an array of issues it had identified relating to the Applicant that are not strictly pertinent to its decision to terminate her employment:
· The Respondent submits that the workplace was toxic due to the Applicant’s presence.
· The Respondent raised issues with the Applicant’s performance. The Respondent stated the Applicant’s performance was satisfactory but disruptive, and that she fell behind the performance of the Coworker.
· The Respondent alleges that the Applicant did act out her threats. The Respondent submits that the Applicant likely stole or damaged the Coworker’s belongings.
· The Respondent asserts that the Applicant is a difficult employee compared to others.
· The Respondent submits that the Applicant has previously made an application following the termination of previous employment.
· The Respondent alleges that, in the Teams chat, it also identified messages that it believes relates to the sale of drugs.
Applicant
The Applicant denies the allegations of misconduct.
The Applicant notes that the “stab” comment occurred around 90 minutes after her and the Teammate had the initial conversation about the Coworker.
The Applicant submits that, during the time elapsed between these messages, she had approached the Teammate started a different conversation which was then followed up on, in the Teams chat, and resulted in that message.
The Applicant stated that the “fk I just want to stab her” message related to a former house mate that she was having a dispute with, in her personal life.
The Applicant submits that she had issues with the Coworker for quite some time and had brought these issues to the attention of the Respondent but had never made a formal complaint.
The Applicant, in reply to the Respondent revealing that the Coworker came across the Teams transcript, questioned how exactly the Coworker could have come across such sensitive information on accident.
The Applicant submits that leaving sensitive documents on the printer was a known issue in the workplace, questioning the accidental nature of the discovery.
The Applicant is of the position that no threats were made to the Coworker. The Applicant submits that she only made comments, of which she submits not all are related to the Coworker, to the Teammate directly.
The Applicant raised concerns over the lack of procedural fairness she was afforded during the complaint and termination process:
· The Applicant submits that she was never provided with the opportunity to respond to the allegations or explain the content of the Teams messages.
· The Applicant states that she was invited to the meeting at close of business on Friday afternoon then was promptly terminated at the start of the next business day.
· The Applicant asserts that the window of time, between the meeting and the dismissal, was not enough to respond to the warning. The Applicant confirms that the Respondent encouraged her to respond to the warning.
· The Applicant submits it was unfair that she was not provided with a copy of the complaint or any evidence when she requested it during the warning meeting.
The Applicant believes she was terminated due to the personal feelings of management and that the Respondent is now reaching in its attempts to defend this action.
The Applicant raised concerns over preferential treatment towards the Coworker and questions the timing of her warning and termination in light of alleged personal meetings between the Coworker and the Respondent.
The Applicant submits that the Coworker is not liked by other staff and that she believed, as a result of private conversations with management relating to the issues she had with the Coworker, management also disliked the Coworker.
The Applicant denies any allegations regarding the alleged discussions of drugs, stating that she was instead discussing nicotine free vapes with a coworker.
The Applicant refutes the Respondent’s comments regarding her performance and notes that she regularly received bonuses, pay rises, and met targets.
The Applicant submits that she had positive rapport with stakeholders in her role.
The Applicant did not deny that other comments in the chat were directed at the Coworker,
Legislative framework
Preliminary matters
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied.
I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed. And, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Consideration of the preliminary matters
The Act requires that I determine several of these initial matters before considering the merits of the Applicant’s application.
There is no dispute between the parties concerning the majority of those initial matters, and I am satisfied, on the materials before me and the assertions of the parties, that several of the usual preliminary issues do not require attention.[1]
However, the Respondent asserts that it is a small business within the meaning of the Act. Therefore, the Respondent submits that the SBFDC applies, and that it was compliant with it, and so this must be considered.
The Small Business Fair Dismissal Code
The SBFDC is only relevant if the employer is a small business as defined in section 23 of the Act. That section provides that “[a] national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time”.
The Respondent has provided the Commission with payroll data to support that, at the time of the Applicant’s dismissal, the Respondent employed less than 15 employees.
I am satisfied that the Respondent was a small business employer within the meaning of section 23 of the Act at the relevant time, having fewer than 15 employees (including any casual employees employed on a regular and systematic basis).
It is therefore necessary to consider whether the Respondent complied with the SBFDC in relation to the dismissal.
Section 396 of the Act provides that, before considering the merits of an unfair dismissal application, the Commission must determine, amongst other matters, whether a dismissal was consistent with the SBFDC.
Section 385 of the Act sets out that a person has been unfairly dismissed if, in part, the Commission is satisfied that the dismissal was not consistent with the SBFDC.[2]
If it is found that the dismissal is consistent with the SBFDC, the person cannot be unfairly dismissed.
Section 388 of the Act reads:
388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
The SBFDC provides:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
The Summary Dismissal section of the SBFDC applies to dismissals that have immediate effect as that term is understood by reference to the decision in Chen v Australian Catering Solutions Pty Ltd,[3] and are not dismissals on notice.[4]
However, as explained in Ryman v Thrash Pty Ltd (Ryman), an immediate dismissal may include a dismissal with a payment in lieu of notice which nevertheless is intended to have immediate effect.[5]
In Ryman, the Full Bench provided a useful synopsis of the proper approach to the construction and application of the Summary Dismissal aspect of the SBFDC and its interaction with regulation 1.07 of the Fair Work Regulations 2009 (Cth) (the Regulations).[6]
That decision has been subsequently followed in Grandbridge Ltd v Wiburd[7] and TIOBE Pty Ltd v Chen.[8]
In Ryman, the Full Bench considered the meaning of summary dismissal and said that it referred to a dismissal without notice arising from:
“a breach of an essential term of the employment contract, a serious breach of a non-essential term of the contract, or conduct manifesting an intention not to be bound by the contract in the future on the part of the employee”.[9]
However, it is not the case that, under the SBFDC, the Commission must be satisfied that serious misconduct was the basis for the dismissal.[10]
Rather, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal and one must also consider whether that belief was based on reasonable grounds.[11]
This element, which has been described as the second element,[12] incorporates the concept that the employer has carried out a reasonable investigation into the matter.[13]
It is not necessary to determine whether the employer was correct in the belief that it held.[14]
Whether the employer had reasonable grounds for the relevant belief is, of course, to be determined objectively.[15]
The focus on serious misconduct must be taken as identifying the subject matter and it appears to be accepted that this term takes its meaning from section 12 of the Act and, thereafter, regulation 1.07 of the Regulations.[16]
If an applicant’s dismissal was consistent with the SBFDC, it cannot be considered unfair within the meaning of the Act.
Consideration
Assessment of the materials before the Commission revels that the Applicant the Coworker clearly had a dislike of each other, and their interpersonal issues contributed to an unpleasant work environment.
I note that the Applicant has denied that the comment “fk I just want to stab her” was directed at the Coworker, and that the Respondent refutes this.
Having considered the materials before me and record of the Teams chat in question, I am inclined to favour the Respondent’s position; that the messages in the Teams chat were made in reference to the Coworker, including the disputed “stab” message.
For a period of over four hours the Applicant and the Teammate made derogatory comments about the Coworker.
The Applicant, several times during the conversation with the Teammate, referred to the Coworker as a “cunt”, incited hurtful behaviour towards the Coworker, and generally expressed a deep disdain for the Coworker.
The Applicant also made a comment which, on plain reading, suggests that the Applicant was considering damaging the personal belongings of the Coworker which were kept in the workplace.
These messages could have been poorly formed jokes by the Applicant, or they may have been evidence of her true ponderings. Either way, I accept the Teams chat is evidence of conduct by the Applicant which was, at the very least, not conducive to an on-going employment relationship with the Respondent.
I accept that the comments were made directly to the Teammate through the Teams chat function and were in a private message between the two.
The Applicant and her colleague used work tools to make these comments. These comments were not made on personal social media accounts in the Applicant’s personal time.
Deputy President McCarthy, in Harley v Rosecrest, outlined the two-step process for an employer to follow in coming to a belief:
“For an employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where FWA, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred.
Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquires or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.”[17]
The Respondent submits the Applicant was terminated as a result of the complaint and the uncovering of the Teams transcript.
The Respondent held a belief that the Applicant, herself, acted in a way that was serious and justified summary dismissal. The following evidence supports this belief:
· The Respondent had, in its possession, a formal written complaint from the Coworker.
· The Respondent had evidence in the form of the Teams transcript which confirmed the content of the messages and that the messages were sent from the Applicant.
· The Applicant made several hateful comments regarding the Coworker including calling her a “cunt”, inciting bullying, and regarding the destruction of her property.
· The Teams chat included the comment “fk I just want to stab her”, which the Respondent asserts relates to the Coworker.
· The Applicant did not volunteer any rebuttal when approached by the Respondent and issued the warning.
I accept the Respondent’s submission, that it held a belief that the Applicant acted in a way that was serious enough to warrant immediate dismissal.
This conduct and behaviour is not acceptable in the workplace and was considered by the Respondent as serious misconduct, justifying the immediate dismissal of the Applicant.
The comments of the Applicant with the Teammate about the Coworker are, in their very nature, particularly cruel and menacing. Such comments have no place in a modern workplace, exceeding what could be considered the ordinary level of workplace gossip or venting.
I am not satisfied that such comments could be construed as harmless jokes or that the comments are a form of endearment simply executed in a vulgar manner.
I am satisfied that the Respondent’s belief that the conduct of the Applicant amounted to a serious breach of the employment contract was reasonable.
The Teams messages were wilful and deliberate on the part of the Applicant and reflect behaviour that is inconsistent with an ongoing employment relationship.
I am also satisfied that the Respondent held a reasonable belief that the Applicant’s conduct posed a serious and imminent risk to the safety of the Coworker.
The messages reflect that the Applicant was not able to interact with the Coworker in a way that would be acceptable, and she expressed desires to treat the Coworker, and her belongings, in a harmful manner.
I am also satisfied that the Respondent’s belief was reasonable in the circumstances.
It is clear there is a long history of issues between the Applicant and the Coworker. Despite the Applicant’s insistence that the “stab” comment does not relate to the Coworker, I am satisfied that, in the context of the chat and the circumstances of the workplace, it was reasonable for the Respondent to believe this comment was made in relation to the Coworker.
Even in the event the “stab” comment was not directed to the Coworker, which I do not accept, I am satisfied that the Respondent held a reasonable belief that the remaining content of the Teams chat was conduct serious enough to warrant the dismissal.
Both parties made reference to several other issues in the workplace or with the parties personally.
I accept the Applicant’s submissions that, at times, the Respondent has been reaching with its submissions. Many statements filed by the Respondent appear to attack and draw conclusions, that are not entirely relevant to the matters at hand, about the Applicant. I am satisfied the majority of these submissions are not substantiated and have not had bearing on the conclusion, in part also due to their irrelevance to the criteria under the Act and the SBFDC.
I am not satisfied that the Respondent dismissed the Applicant due to favouritism. It is clear that there were issues between the two employees and that the evidence of the Applicant’s conduct substantiated a reasonable belief that it was serious enough to warrant immediate dismissal.
I note the Applicant made several submissions regarding procedural fairness. The Applicant took issue with how she was warned, not provided evidence or a support person, and given little time to respond prior to her termination.
The Respondent, in its submissions, appears confused regarding the process it undertook; the Applicant was warned and given opportunity to respond but was dismissed for serious misconduct with immediate effect? Both cannot be the case in the circumstances of this matter.
For clarity, I have concluded that the Applicant was dismissed for serious misconduct with immediate effect.
The warning meeting, although the Applicant was encouraged to draft a response, did not appear to serve as show cause nor does it appear the Applicant was forewarned of imminent termination due to the complaint.
Had the Respondent not been a small business, and the SBFDC did not apply, the deficiencies noted in procedural fairness would indeed pose issue for the Respondent.
However, as the SBFDC applies, the Respondent was not required to undertake many of the procedural steps the Applicant noted were missed.
The Applicant’s frustrations regarding how her termination was actioned are understandable. Unfortunately, however, these issues cannot subvert the conclusion made regarding the Respondent’s compliance with the SBFDC.
If I have erred, either in my conclusion regarding the size of the Respondent or its compliance with the SBFDC, and the matter would instead be assessed against the usual criteria in the Act, the Applicant’s contentions would be significant.
Conclusion
I am therefore satisfied that the dismissal was consistent with the SBFDC and therefore the application must be dismissed, an Order to that effect has been issued.[18]
COMMISSIONER
[1] The application appears to have been made within the relevant time period (s.394(2)). There is no dispute that the Applicant has been dismissed (s.386). The Applicant is a person protected from unfair dismissal as; the Applicant did not earn over the high-income threshold, the Applicant’s employment was subject to an Award, and it is not disputed that the Applicant has served the minimum employment period (s.382). The Applicant’s dismissal was not a case of genuine redundancy (s.389). Additionally, the Hearing was held in compliance with section 397. Both parties were self-represented and did not require permission to appear.
[2] Fair Work Act 2009 (Cth) s 385(c).
[3] [2017] FWC 3930, [62] – [64].
[4] (2015) 268 IR 1, 14 [36].
[5] Ibid 13 [32].
[6] Ibid 14 [37] – [38]
[7] [2017] FWCFB 6732.
[8] (2018) 282 IR 1.
[9] (2015) 268 IR 1, 11 [27].
[10] Ibid [39]; [2017] FWCFB 6732, [28].
[11] (2012) 219 IR 128, 135 [29].
[12] Ibid.
[13] Ibid; (2015) 268 IR 1, 15 [39]; [2017] FWCFB 6732, [28].
[14] (2012) 219 IR 128, 135 [29].
[15] (2015) 268 IR 1, 15 [40].
[16] [2017] FWCFB 6732, [28]; ibid, 14 [37].
[17] [2011] FWA 3922, [8] – [9].
[18] [PR764877].
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