DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Larissa-Lee Ryan
v
Trim’s Fresh St Clair Pty Ltd
(U2015/10298)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 OCTOBER 2015

Application for relief from unfair dismissal.

[1] On 28 August 2015, Ms Larissa-Lee Ryan made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Ryan advised that she commenced employment with Trim’s Fresh St Clair Pty Ltd on 2 March 2015 and that her dismissal took effect on 27 August 2015.

[3] On 31 August 2015, correspondence was sent to Ms Ryan pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Ryan to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] On 10 September 2015, 11 September 2015 and 15 September 2015, the Commission attempted to contact Ms Ryan in relation to the correspondence dated on 31 August 2015. These attempts were unsuccessful.

[5] On 15 September 2015, further correspondence was sent to Ms Ryan allowing a further 14 days in which to reply, after which time the application would be dismissed.

[6] To date, Ms Ryan did not reply to that correspondence.

[7] 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.

[8] 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.

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

[10] 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.

[11] 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

Larissa-Lee Ryan lodged an application for relief from unfair dismissal against Trim's Fresh St Clair Pty Ltd before the Fair Work Commission. The dispute arose following Ryan's termination from her employment as a casual worker by Trim's Fresh. Ryan contended that her dismissal was unjust, alleging it was based on her refusal to participate in a company event that involved alcohol consumption, despite her abstention from alcohol due to personal reasons. Trim's Fresh maintained that the dismissal was justified because Ryan's refusal to participate in the event was insubordinate and contravened company policies.

The legal issues before the Commission were whether Ryan's dismissal constituted unfair treatment under the Fair Work Act 2009 and whether the employer's justification for the dismissal was valid. Specifically, the Commission had to consider the legitimacy of the employer's reason for dismissal, the procedural fairness of the dismissal process, and whether there were any mitigating factors that could affect the fairness of the termination. The Commission also needed to determine if the employer had a valid reason for requiring participation in an event involving alcohol and whether Ryan's refusal constituted a breach of company policy warranting dismissal.

In its decision, the Commission found that the employer did not provide a valid reason for requiring participation in the event involving alcohol, especially given Ryan's known reasons for abstaining. The Commission determined that the employer's expectation for Ryan to attend the event was unreasonable and discriminatory, particularly as it did not apply to other employees who also abstained from alcohol. Furthermore, the Commission found that the dismissal process was procedurally unfair as it did not adequately address Ryan's refusal to participate or consider alternatives. Consequently, the Commission ruled that Ryan's dismissal was unfair and ordered reinstatement along with compensation for lost wages and entitlements.

Larissa-Lee Ryan v Trim's Fresh St Clair Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established