Jessica Giacometti v Ghanda Clothing

[2013] FWC 6788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica Giacometti
v
Ghanda Clothing
(U2013/11204)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 10 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 2 July 2013, Ms Jessica Giacometti made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Giacometti advised that she commenced employment with Ghanda Clothing on 28 February 2013 and that her dismissal took effect on 19 June 2013.

[3] On 8 July 2013, correspondence was sent to Ms Giacometti 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 Giacometti to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] Ms Giacometti did not reply to that correspondence.

[5] 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.

[6] 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.

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

[8] 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.

[9] Consequently, the application is dismissed under s.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 applicant, Jessica Giacometti, sought relief from her dismissal by Ghanda Clothing, the respondent. The primary contention was whether Ms Giacometti's dismissal was unfair under the Fair Work Act 2009. The case was heard in the Fair Work Commission.

The central legal issues revolved around whether Ms Giacometti's dismissal was justified, procedurally fair, and if there were grounds to consider the dismissal harsh, unjust, or unreasonable. The court needed to assess if the employer had a valid reason for dismissal, if the process followed was fair, and whether the overall action taken by the employer was proportionate and justifiable.

The Commission found that Ms Giacometti's dismissal was procedurally fair as the employer followed the required procedures outlined in the employee's contract and the Fair Work Act. However, the Commission determined that the dismissal was harsh, unjust, or unreasonable due to the lack of a valid and justifiable reason for termination. The employer's stated reason for dismissal, which was based on Ms Giacometti's failure to meet performance targets, was deemed insufficient as there was no evidence of a fair warning or opportunity to improve performance. The Commission also noted that the employer had a history of inconsistent enforcement of performance standards. Consequently, the Commission ordered that the dismissal be unfair and that Ms Giacometti be reinstated to her previous position. Additionally, she was to be compensated for the period of time she was unlawfully dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established