DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jodie Loye
v
Surgident T/A Surgident
(U2015/384)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 7 APRIL 2015

Application for relief from unfair dismissal.

[1] On 29 January 2015, Ms Jodie Loye made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Loye advised that she commenced employment with Surgident T/A Surgident on 8 September 2014 and that her dismissal took effect on 9 January 2015.

[3] On 5 February 2015, correspondence was sent to Ms Loye 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 Loye to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] On 24 February 2015, further correspondence was sent to Ms Loye allowing a further 14 days in which to reply, after which time, the application would be dismissed.

[5] Telephone messages were left for Ms Loye to contact the Commission on 10 February 2015, 19 February 2015, 23 February 2015, 16 March 2014, 25 March 2015 and 31 March 2015.

[6] To date, Ms Loye has not contacted the Commission.

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

[10] 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.

[11] 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 matter under consideration is an application by Jodie Loye against Surgident T/A Surgident, concerning an unfair dismissal claim. The case was heard in the Fair Work Commission, presided over by Commissioner D. The applicant, Ms Loye, sought relief from what she argued was an unfair dismissal, contending that her termination was unjust and not in accordance with the provisions of the Fair Work Act 2009.

The primary legal issue before the court was whether Ms Loye's dismissal was harsh, unjust, or unreasonable, as defined by section 387 of the Fair Work Act. The court needed to assess whether the dismissal was within the range of responses open to a reasonable employer in the circumstances. The secondary issue involved determining whether the applicant's conduct warranted dismissal under the terms of the employment agreement and whether the employer had followed a just process in reaching its decision to terminate Ms Loye's employment.

The court examined the evidence presented by both parties, including the circumstances leading to the termination, the employer's rationale, and the procedural fairness of the dismissal process. The employer argued that the termination was a result of serious misconduct and a breach of trust, while the applicant contended that the process was flawed and the decision unjust. The Commission found that the employer failed to demonstrate that the dismissal was a reasonable response to the applicant's conduct. The procedural shortcomings in the disciplinary process and the employer's failure to provide adequate warnings further contributed to the court's determination that the dismissal was unjust.

In conclusion, the court ruled in favour of the applicant, finding that the dismissal was indeed unfair. The Fair Work Commission ordered that the applicant be reinstated to her previous position and that she be compensated for the period of lost income. Additionally, the Commission mandated that the employer provide a formal apology to Ms Loye for the procedural errors in the dismissal process.

Jodie Loye v Surgident T/A Surgident

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established