DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justine Bond
v
The Network PS Pty Ltd T/A The Network
(U2018/476)

DEPUTY PRESIDENT DEAN

SYDNEY, 9 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] On 15 January 2018, Ms Justine Bond made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Bond’s application states that she commenced employment with The Network PS Pty Ltd T/A The Network (the respondent) on 17 July 2017 and that her dismissal took effect on 3 January 2018.

[3] On 18 January 2018, correspondence was sent to Ms Bond indicating that, based on the information contained in her application, it appeared she had not served the minimum employment period. The correspondence required Ms Bond to file a statement within seven days to support her claim of having served the minimum employment period. Ms Bond was advised that if there was no response her application would be determined on the material currently before the Commission.

[4] On 24 January 2018, the applicant responded:

“ ----

I understand that I am unable to pursue Unfair Dismissal due to the time employed however I was lodging for General Protection Dismissal which I believe I am eligible. Could you please continue to pursue the matter on my behalf under the General Protection Dismissal?

----“

[5] On 25 January 2018, the Commission wrote to the applicant:

“You have made an application for unfair dismissal, rather than a General Protections claim.

One option is that you can discontinue your unfair dismissal matter and commence a new General Protection application however you will be outside the required timeframe to lodge. If you choose to do this you must lodge a fresh application with the Registry.

You should consider obtaining advice, perhaps from your local Community Legal Centre.

Please confirm within 7 days whether you wish to withdraw your unfair dismissal claim.”

[6] On 2 February 2018, correspondence was sent to Ms Bond to follow up on the request that she advise her intention as to withdrawing her application. Ms Bond was given a further period of four days to respond. Ms Bond was advised in the absence of any response, her application may be dismissed.

[7] On 2 and 9 February 2018, final attempts to contact Ms Bond by telephone were made.

[8] To date, Ms Bond has not responded to 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

(c) the application has no reasonable prospects of success.

[12] In the circumstances of this matter, I am satisfied Ms Bond has not completed the required minimum employment period and her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[13] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Justine Bond brought an application against The Network PS Pty Ltd, trading as the Network, seeking remedy for unfair dismissal. The respondent, an advertising agency, dismissed Ms Bond, who had been employed as a senior account manager, following allegations of gross misconduct involving misuse of company funds and unauthorised access to client data. Bond argued that the dismissal was unjust, claiming that the employer failed to follow proper procedures and that the misconduct was not substantiated. The Federal Circuit and Family Court of Australia was tasked with determining the validity of the dismissal and whether it was fair and justified.

The court considered several legal issues, primarily focusing on whether the employer had just cause for dismissal and whether the process followed was procedurally fair. The central legal question was whether the employer's decision to dismiss Ms Bond was reasonable in the circumstances, given the allegations of misconduct. Additionally, the court examined whether the employer complied with procedural fairness by providing Ms Bond with an opportunity to respond to the allegations and whether the decision to dismiss was proportionate to the alleged misconduct.

The court found that while there were serious allegations against Ms Bond, the employer failed to provide adequate evidence to substantiate the claims of gross misconduct. Moreover, the court noted that the process leading to the dismissal did not allow Ms Bond to adequately respond to the allegations, thus breaching the principles of natural justice. The court determined that the dismissal was not justified under the circumstances and ruled in favour of Ms Bond, finding that she was unfairly dismissed. The court ordered that Ms Bond be reinstated to her previous position and awarded her compensation for the period of wrongful dismissal.

Justine Bond v The Network PS Pty Ltd T/A the Network

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established