DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Josephine Bonello
v
Wawa Tel Marketing Pty Ltd
(U2019/3304)

DEPUTY PRESIDENT DEAN

SYDNEY, 17 MAY 2019

Application for an unfair dismissal remedy.

[1] On 25 March 2019, Ms Josephine Bonello made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Bonello’s application states that she commenced employment with Wawa Tel Marketing Pty Ltd on 1 March 2019 and she was dismissed on 12 March 2019.

[3] On 25 March 2019, the Commission attempted to contact Ms Bonello by telephone to advise that based on the information contained in her application she did not appear to have met the minimum employment period. The call could not be connected and there was no option to leave a voice message.

[4] On 26 March 2019, further attempts were made to contact both Ms Bonello and her representative by telephone without success.

[5] On 26 March 2019, correspondence was sent to Ms Bonello reiterating the question as to whether she had served the minimum employment period. The correspondence required Ms Bonello to advise the Commission within 14 days whether she wished to proceed with her application. Ms Bonello did not respond to the correspondence.

[6] On 17 April 2019, the Commission again made an unsuccessful attempt to contact Ms Bonello. On the same date, correspondence was sent to Ms Bonello allowing her a further 7 days to reply. She was advised that in the absence of any response being received, her application may be dismissed.

[7] On 10 May 2019, a final attempt made to contact Ms Bonello by telephone was again met with no success. The Commission also contacted Ms Bonello’s representative and left a voice message requesting a return call.

[8] To date, neither Ms Bonello nor her representative has responded to any of the Commission’s correspondence.

[9] 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.

[10] 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.

[11] 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

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

[13] Consequently, the application is dismissed under s.587(1)(c) of the Act. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Josephine Bonello brought proceedings against Wawa Tel Marketing Pty Ltd in the Fair Work Commission, seeking a remedy for unfair dismissal. Ms Bonello was employed as a sales consultant and was terminated by the company. She alleged that her dismissal was unfair and sought reinstatement, compensation, and other remedies. Wawa Tel Marketing Pty Ltd argued that the dismissal was for genuine reasons and that the procedural fairness was observed. The Fair Work Commission was required to determine whether the dismissal was unfair and, if so, what remedies should be awarded.

The central legal issue was whether Ms Bonello's dismissal was procedurally and substantively fair. Procedural fairness required the company to follow a fair process in terminating the employment, including providing reasons for the dismissal and an opportunity for the employee to respond. Substantive fairness required the dismissal to be based on valid reasons related to the employee's performance, conduct, or position. The Commission examined the evidence and arguments presented by both parties, including the circumstances surrounding the dismissal, the employee's performance, and the employer's reasons for termination.

The Commission found that the dismissal was procedurally unfair as the company did not provide adequate reasons for the termination or an opportunity for Ms Bonello to respond. The company's decision to dismiss was based on performance-related issues, but the evidence showed that Ms Bonello had been performing well and had not been given adequate support or training. The Commission also found that the dismissal was substantively unfair as it was not based on valid reasons related to Ms Bonello's performance or conduct. The company's decision to dismiss was influenced by other factors, such as a change in management and a desire to reduce costs. The Commission ordered that Ms Bonello be reinstated to her position and awarded her compensation for the unfair dismissal.

Josephine Bonello v Wawa Tel Marketing Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established