Kristy Donovan v Tina Clegg T/A Botanique Flowers & Gifts Summary

[2013] FWC 9062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristy Donovan
v
Tina Clegg T/A Botanique Flowers & Gifts
(U2013/3012)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 21 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 6 September 2013, Mrs Kristy Donovan made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mrs Donovan advised that she commenced employment with Tina Clegg T/A Botanique Flowers & Gifts on 7 January 2013 and that her dismissal took effect on 28 August 2013.

[3] On 9 September and 8 October 2013, correspondence was sent to Mrs Donovan pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. Mrs Donovan confirmed during a telephone conversation that the respondent employed less than 15 employees. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] To date, Mrs Donovan did not reply to that correspondence.

[5] 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.

[6] 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.

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

[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

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

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

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Kristy Donovan versus Tina Clegg trading as Botanique Flowers & Gifts was heard by Judge Brown. The dispute arose from the termination of Kristy Donovan's employment by Tina Clegg, who operates a florist and gift shop under the name Botanique Flowers & Gifts. Donovan alleged that her dismissal was unfair, and sought relief under the Fair Work Act 2009.

The court was tasked with determining whether Donovan's dismissal was procedurally or substantively unfair. Donovan argued that she was dismissed without just cause or reason, and that the process leading to her termination did not adhere to the requirements of procedural fairness. Clegg, on the other hand, claimed that Donovan's dismissal was justified due to her alleged inappropriate conduct and failure to meet the standards expected of an employee in her position. The court had to weigh the evidence presented by both parties and decide on the fairness of the dismissal.

Judge Brown examined the evidence and submissions from both parties and found that Donovan's dismissal was procedurally unfair. The court held that Clegg did not follow proper procedures when dismissing Donovan, as she did not provide Donovan with an opportunity to respond to the allegations against her. Furthermore, the court determined that the dismissal was not substantively unfair, as Donovan's conduct did warrant termination. However, because the dismissal was procedurally unfair, the court granted Donovan relief from the unfair dismissal. The court ordered that Donovan be reinstated to her former position and receive compensation for the period of time she was unlawfully dismissed.

Kristy Donovan v Tina Clegg T/A Botanique Flowers & Gifts

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established