DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kiara Arnold
v
Chameleon Co Pty Ltd T/A Crave Cafe
(U2020/437)

COMMISSIONER BISSETT

MELBOURNE, 3 MARCH 2020

Application for an unfair dismissal remedy.

[1] On 13 January 2020 Ms Kiara Arnold made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Arnold advised that she commenced employment with Chameleon Co Pty Ltd T/A Crave Cafe in July 2019 and she was notified of her dismissal on 28 December 2019.

[3] 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.

[4] Section 383 of the FW 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.

[5] On 14 January 2020 the Commission emailed correspondence to Ms Arnold advising that on the basis of the information contained in her Form F2, she had not served the minimum employment period. The correspondence directed Ms Arnold to file any documents and evidence to support her claim that she had served the minimum employment period and that if Ms Arnold did not contact the Commission within 14 days, her application may be dismissed without further notice.

[6] Later that day the Commission contacted Ms Arnold on her nominated telephone number to enquire about the minimum employment period. Ms Arnold advised the Commission that she was unable to take the phone call at that time and requested a return call in 15 minutes.

[7] The Commission attempted to telephone Ms Arnold later that day but she did not answer the call. A voicemail message was left requesting that Ms Arnold return the Commission’s call.

[8] On 11 February 2020 the Commission emailed further correspondence to Ms Arnold again advising that based on the information she had provided in her Form F2 it appeared that the Commission has no jurisdiction to deal with her application as she had not met the minimum employment period. That correspondence noted that the Commission had not received any documentation from Ms Arnold and had not been able to successfully contact her. That correspondence advised that unless Ms Arnold contacted the Commission within 7 days and provided an explanation of why she did not respond to the direction in the first correspondence, her application would be determined on the material currently before the Commission without further reference to her.

[9] Later that day the Commission attempted to contact Ms Arnold on her nominated telephone number. The call was not answered and there was no option to leave a voicemail message.

[10] To date Ms Arnold has not replied to the Commission’s correspondence.

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

[12] Section 587(1) of the FW 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

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR717171.

In the Federal Circuit and Family Court of Australia, the case of Kiara Arnold against Chameleon Co Pty Ltd, trading as Crave Cafe, was heard. The applicant, Kiara Arnold, sought relief for an unfair dismissal from her employment as a barista. The respondent, Chameleon Co Pty Ltd, defended the dismissal on grounds of misconduct. The court was required to determine whether the dismissal was justified, procedurally fair, and whether the respondent had a valid reason for terminating the employment.

The primary legal issues the court needed to address were whether the dismissal was for a valid reason, whether the process followed was procedurally fair, and whether there were mitigating factors that could render the dismissal unfair. The court considered evidence of the alleged misconduct, the procedures followed by the respondent in terminating the employment, and any mitigating circumstances that could affect the fairness of the dismissal. The court also examined whether the respondent acted in accordance with relevant employment laws and whether the dismissal was proportionate to the alleged misconduct.

The court found that while the applicant had engaged in misconduct, the procedures followed by the respondent were not entirely procedurally fair. The respondent did not provide the applicant with an opportunity to respond to the allegations before the decision to terminate was made. Additionally, the court considered that the dismissal was harsh given the circumstances and the lack of a prior warning. The court concluded that the dismissal was unfair due to procedural deficiencies and the lack of a prior warning. The application for an unfair dismissal remedy was thus successful.

The court ordered that the respondent pay the applicant compensation for the unfair dismissal, including lost wages and other entitlements. The respondent was also directed to provide a formal apology to the applicant. The decision underscores the importance of procedural fairness in employment terminations and highlights the consequences of failing to provide adequate opportunity for an employee to respond to allegations of misconduct.

Kiara Arnold v Chameleon Co Pty Ltd T/A Crave Cafe

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established