DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica Mitchell
v
Medihealth Pathology
(U2021/2493)

COMMISSIONER BISSETT

MELBOURNE, 15 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 25 March 2021, Miss Jessica Mitchell (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Miss Mitchell advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Medihealth Pathology (Respondent) on 7 September 2020 and that her dismissal took effect on 5 March 2021.

[3] On 26 March 2021, the Commission attempted to contact Miss Mitchell on her nominated telephone number. A voicemail message was left asking her to contact the Commission regarding the minimum employment period.

[4] Later that day the Commission emailed correspondence to Miss Mitchell’s nominated email address advising her that, based on the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Miss Mitchell to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned Miss Mitchell that if she did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to Miss Mitchell’s nominated telephone number requesting that she contact the Commission.

[5] As the required documentation was not received, on 7 April 2021 the Commission attempted to contact Miss Mitchell via her nominated telephone number. However, Miss Mitchell could not be reached. A voicemail message was left requesting that she contact the Commission regarding the minimum employment period.

[6] On 9 April 2021 the Commission again attempted to contact Miss Mitchell again on her nominated telephone number. However, Miss Mitchell could not be reached. A voicemail message was left advising her that, based on the information provided on the application form, she did not appear to meet the minimum employment period. The voicemail message advised that if she wished to correct the dates or provide further information that she should contact the Commission by 5pm that day otherwise the matter may be dismissed without further notice.

[7] To date, Miss Mitchell has not replied to the Commission’s correspondence.

[8] Section 382 of the FW 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.

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

[10] Section 383 of the FW Act sets out the minimum employment period as follows:

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] Section 587(1) of the FW Act provides that:

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

[12] Having regard to the circumstances of this matter I am satisfied that as Miss Mitchell has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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1 PR728632

The case involved an application by Jessica Mitchell against Medihealth Pathology for an unfair dismissal remedy. Mitchell was employed by Medihealth Pathology as a pathology collector. She was dismissed from her employment after being charged with stealing from the employer. Mitchell sought a remedy for unfair dismissal, arguing that her dismissal was harsh, unjust, or unreasonable. Medihealth Pathology argued that Mitchell's dismissal was justified as she was charged with stealing, which constituted serious misconduct.

The court was required to determine whether Mitchell's dismissal was procedurally fair, whether the dismissal was for a valid reason, and whether the dismissal was harsh, unjust, or unreasonable in the circumstances. The court had to consider whether the employer had followed a fair process in dismissing Mitchell and whether the dismissal was proportionate to the alleged misconduct.

The court found that Mitchell's dismissal was procedurally fair as Medihealth Pathology followed a fair process in dismissing her. The employer gave Mitchell an opportunity to respond to the allegations of stealing, and she was provided with the evidence against her. The court also found that the dismissal was for a valid reason as Mitchell was charged with stealing, which constituted serious misconduct. However, the court found that the dismissal was harsh, unjust, or unreasonable in the circumstances as Mitchell had no prior disciplinary record, and the employer did not consider her length of service or other mitigating factors. The court ordered that Mitchell's dismissal be terminated, and she be paid her entitlements, including her redundancy payment.

Jessica Mitchell v Medihealth Pathology

DECISION

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