DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kimberley Nash
v
Cottage Kennals & Cattery
(U2018/10592)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 15 October 2018, Miss Kimberley Nash made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Miss Nash advised that she commenced employment with Cottage Kennals & Cattery on 28 August 2018. Miss Nash further advised that she was notified of her dismissal on 9 October 2018 and that it took effect on the same day.

[3] On 15 October 2018, the Commission telephoned Miss Nash and left a voicemail message seeking her return call. Subsequently, email correspondence was sent to Miss Nash advising that on the basis of the information provided in the application, she had not served the minimum employment period required by the Act. The correspondence directed Miss Nash to file in the Commission, within 14 days, any documents or evidence to support her claim of having served the minimum employment period.

[4] On 17 October 2018, there was a further attempt to telephone Miss Nash, however on that occasion it appeared the telephone number had been disconnected. Further correspondence was then sent to Miss Nash.

[5] Since 29 October 2018, a further 10 days have passed without material being filed. Miss Nash has not responded in any way to either piece of correspondence from the Commission.

[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] 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

[9] Having regard to the information provided by Miss Nash in her Form F2 and in the absence of her subsequently producing evidence to the contrary, I am satisfied that as Miss Nash 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 Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Kimberley Nash versus Cottage Kennals & Cattery involved an employee who sought relief from an alleged unfair dismissal. The applicant, Kimberley Nash, claimed she was dismissed without just cause or excuse by her employer, Cottage Kennals & Cattery, which operates a kennel and cattery service. The dispute was brought before the Fair Work Commission, an Australian industrial relations tribunal with jurisdiction over unfair dismissal claims.

The primary legal issues the Commission was required to determine were whether the dismissal of Ms Nash was harsh, unjust, or unreasonable, and if the employer had valid grounds for termination. This involved assessing the employer's evidence of misconduct and the reasonableness of their response to that misconduct, alongside the proportionality of the dismissal in the context of the overall relationship between the employer and the employee.

The Fair Work Commission found that the employer did have valid reasons to dismiss Ms Nash due to her conduct, which included dishonesty and breaches of company policy. However, the Commission also noted that the employer failed to follow a fair process in reaching the decision to dismiss. The employer did not provide the employee with an opportunity to respond to the allegations, nor did they adequately investigate the circumstances before making the decision. The Commission concluded that the dismissal was unfair due to these procedural shortcomings, despite the presence of grounds for termination. As a result, the Commission ordered that the employer reinstate Ms Nash to her previous position and award her compensation for the unfair dismissal.

Kimberley Nash v Cottage Kennals & Cattery

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established