Kristin Vahanian v Energy Saving Products Pty Ltd T/A Solar Bright

[2018] FWC 7432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kristin Vahanian

Energy Saving Products Pty Ltd T/A Solar Bright

(U2018/10627)

Deputy President Dean

SYDNEY, 6 DECEMBER 2018

Application for an unfair dismissal remedy.

On 15 October 2018, Ms Kristin Vahanian made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

Ms Vahanian states in her application that she commenced employment with Energy Saving Products Pty Ltd T/A Solar Bright (Solar Bright) on 21 February 2018.

On 8 November 2018, Solar Bright filed an Employers Response (form F3) objecting to the application on the grounds that Ms Vahanian had not been dismissed. Solar Bright further submitted that it is a small business with fewer than 15 employees.

On 22 November 2018, correspondence was sent to Ms Vahanian indicating that, based on the information contained in the Employer Response, it appeared she may not have served the minimum employment period. The correspondence required Ms Vahanian to file a statement within seven days to support her claim of having served the minimum employment period.

On 30 November 2018, correspondence was sent to Ms Vahanian noting that she had previously been directed to file a statement in support of her claim that she had served the minimum employment period but had not done so. Ms Vahanian was given until 4pm on
4 December 2018 to respond. Ms Vahanian was advised that in the absence of any material being received, her application may be dismissed.

Further attempts were made to contact Ms Vahanian by telephone on 30 November and 5 December 2018.

To date, Ms Vahanian has not responded to the Commission.

Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

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.

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.

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

The applicant, Kristin Vahanian, sought an unfair dismissal remedy against Energy Saving Products Pty Ltd, trading as Solar Bright. The applicant alleged that she was unfairly dismissed from her employment, which was terminated on the basis of her refusal to comply with an unreasonable direction from her employer. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the applicant's dismissal was harsh, unjust, or unreasonable. This involved examining the nature of the direction given to the applicant and whether her refusal to comply was justified. The applicant argued that the direction was unreasonable and that she had a valid reason to refuse it, thus making her dismissal unfair. The employer contended that the direction was reasonable and that the dismissal was justified.

The Commission considered the nature of the direction and the circumstances surrounding the applicant's refusal. It assessed whether the direction was reasonable and whether the applicant's refusal was justified. The Commission found that the direction was unreasonable and that the applicant had a valid reason to refuse it. Consequently, the dismissal was deemed harsh, unjust, or unreasonable. The Commission ordered that the applicant's dismissal be set aside and that she be reinstated to her former position. Additionally, the employer was directed to pay compensation to the applicant for the period of her unlawful dismissal.

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