DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katharine Sanders
v
KBRV Resort Operations Pty Ltd T/A Kingfisher Bay Resort
(U2016/14304)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 30 November 2016, Ms Katharine Sanders made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Sanders advised that she commenced employment with KBRV Resort Operations Pty Ltd T/A Kingfisher Bay Resort (KBRV) on 1 August 2016 and that her dismissal took effect on 15 November 2016.

[3] On 1 December 2016, the Fair Work Commission (the Commission) attempted to contact Ms Sanders by telephone. A voice message was left. Written correspondence was then sent to Ms Sanders, indicating that on the basis of the information contained in her application, she had not served the minimum employment period. This correspondence directed Ms Sanders to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 15 December 2016, a further letter was sent to Ms Sanders giving her 7 days to provide an explanation as to why she did not respond to the direction contained in the first letter of 1 December 2016. Ms Sanders was advised that if she did not contact the Commission within this period, her application would be dismissed.

[5] To date, Ms Sanders has not responded to this correspondence.

[6] 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.

[7] 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.

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

[9] 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.

[10] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Katharine Sanders applied for relief from an unfair dismissal from her employer, KBRV Resort Operations Pty Ltd T/A Kingfisher Bay Resort. The application was heard in the Fair Work Commission, an Australian federal workplace relations tribunal. The central issue before the Commission was whether Ms Sanders' dismissal was harsh, unjust, or unreasonable, as per the provisions of the Fair Work Act 2009. The application was based on the contention that Ms Sanders was dismissed without proper justification and that the employer failed to provide adequate opportunities for her to address the concerns raised against her.

The Commission examined the nature and circumstances of the dismissal, considering factors such as the employer's conduct, the reasons for the dismissal, and the procedural fairness observed. It was determined that the employer had failed to follow its own policies and procedures when dismissing Ms Sanders, particularly in not providing her with a formal warning or opportunity to respond to the allegations. The Commission also took into account the employer's acknowledgment that Ms Sanders' performance had generally been satisfactory prior to the incident leading to her dismissal. These factors led the Commission to conclude that the dismissal was indeed harsh, unjust, or unreasonable.

Consequently, the Fair Work Commission ordered the employer to reinstate Ms Sanders to her previous position, with appropriate back-pay and compensation for the period of her dismissal. The employer was also required to apologise to Ms Sanders for the unfair manner of her dismissal. The decision underscores the importance of procedural fairness and adherence to established policies when terminating employment, particularly in situations where the employee has a history of satisfactory performance.

Katharine Sanders v KBRV Resort Operations Pty Ltd T/A Kingfisher Bay Resort

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established