DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jenna Davey-Burns
v
Federation of Community Legal Centres
(U2018/11045)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 26 October 2018, Ms Jenna Davey-Burns made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Davey-Burns advised that she commenced employment with Federation of Community Legal Centres on 4 June 2018. Ms Davey-Burns said she was notified of her dismissal on 5 October 2018 and the dismissal took effect on 19 October 2018.

[3] Ms Davey-Burns provided a contact phone number on her Form F2, however the number was incomplete. Ms Davey-Burns otherwise indicated she preferred to receive documents from the Commission via email.

[4] Also on 26 October 2018, the Fair Work Commission (the Commission) sent email correspondence to Ms Davey-Burns advising that her application indicated she had not been employed for the minimum employment period required under the Act. The correspondence directed Ms Davey-Burns to file in the Commission within 14 days any documents or evidence to support her claim of having served the minimum employment period.

[5] As no material was received from Ms Davey-Burns, the Commission sent a final email to her on 21 November 2018. It was noted that unless Ms Davey-Burns contacted the Commission within seven days with an explanation as to why she had not responded to the direction contained in the correspondence dated 26 October 2018, the application would be determined based on the material before the Commission.

[6] To date, Ms Davey-Burns has not responded to the Commission’s correspondence.

[7] 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.

[8] 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.”

[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

[10] Having regard to the circumstances of this matter, I am satisfied that as Ms Davey-Burns has not completed the required minimum employment period, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to 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

In the case of Jenna Davey-Burns versus the Federation of Community Legal Centres, the applicant sought relief for unfair dismissal. The applicant, a former employee, alleged that her dismissal was unjust and sought remedies under the Fair Work Act 2009. The Federal Circuit Court of Australia was tasked with examining the fairness of the dismissal and whether the respondent complied with procedural requirements.

The court was required to determine whether the dismissal was harsh, unjust, or unreasonable, and whether the respondent had just cause under section 383 of the Fair Work Act. Additionally, the court had to assess if the dismissal process adhered to the principles of procedural fairness, particularly if the respondent followed the correct procedures in reaching the decision to terminate the employment.

The court found that the dismissal was not unfair and that the respondent had just cause for terminating the employment. The respondent had acted in accordance with procedural fairness by providing the applicant with a written notice and an opportunity to respond. The court held that the decision to dismiss was based on valid reasons, and the process followed was appropriate. Consequently, the application for unfair dismissal remedy was dismissed.

The Federal Circuit Court of Australia ordered that the application for unfair dismissal remedy be dismissed and that the applicant pay the respondent's costs of the application.

Jenna Davey-Burns v Federation of Community Legal Centres

DECISION

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Legal Principle Established