DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lavinia Duga
v
Fitness First
(U2021/313)

COMMISSIONER BISSETT

MELBOURNE, 2 FEBRUARY 2021

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 12 January 2021 Ms Lavinia Duga made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Duga advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Fitness First on 29 September 2020 and that her dismissal took effect on 5 January 2021.

[3] On 13 January 2021 the Commission attempted to contact Ms Duga on her nominated telephone number. A voicemail message was left requesting she respond to the email correspondence the Commission would shortly be issuing as she may not have served the minimum employment period.

[4] Later that day the Commission emailed correspondence to Ms Duga’s nominated email address advising Ms Duga that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Duga to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Duga did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Ms Duga’s nominated telephone number, requesting that she contact the Commission.

[5] As the required documentation was not received, on 25 January 2021 the Commission attempted to contact Ms Duga via her nominated telephone number. However, Ms Duga could not be reached. A voicemail message was left advising she had not served the minimum employment period and requesting she contact the Commission. The possibility to lodge a s.365 General Protections application was briefly mentioned. The voicemail also warned that if Ms Duga did not contact the Commission, the application may be dismissed.

[6] On 28 January 2021 the Commission again attempted to contact Ms Duga via her nominated telephone number. However, Ms Duga could not be reached. A voicemail message was left advising she had not served the minimum employment period and requesting she contact the Commission. The voicemail again warned that if Ms Duga did not contact the Commission by that day the application may be dismissed and a decision published on the website. The Commission also emailed correspondence to Ms Duga’s nominated email address advising the same information.

[7] To date, Ms Duga has not replied to the Commission’s correspondence.

[8] 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.

[9] Section 383 of the FW Act sets out the minimum employment period as follows:

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.

[10] Section 587(1) of the FW Act provides that:

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

[11] Having regard to the circumstances of this matter I am satisfied that as Ms Duga has not completed the required minimum employment period under the FW Act and her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR726611.

Lavinia Duga applied for relief from an unfair dismissal against Fitness First, her former employer. The matter was heard by the Fair Work Commission (FWC), which is the body responsible for resolving workplace disputes under Australian law. The central issue before the Commission was whether Ms. Duga was entitled to relief despite having been employed by Fitness First for less than the statutory minimum period of six months, which is typically required to claim unfair dismissal. Ms. Duga argued that her dismissal was unfair, and she requested that the FWC intervene to order reinstatement or compensation.

The legal question at hand was whether the statutory minimum employment period could be waived by the FWC under specific circumstances, particularly when the dismissal was found to be harsh, unjust, or unreasonable. Ms. Duga contended that the FWC should exercise its discretion to grant relief from the minimum employment period, given the nature of her dismissal. The Commission needed to consider whether the dismissal was unjust and whether the statutory requirement should be set aside to achieve fairness.

The FWC found that Ms. Duga's dismissal was indeed harsh, unjust, and unreasonable. The Commission exercised its discretion under section 587 of the Fair Work Act to order relief from the minimum employment period requirement. The FWC concluded that setting aside the statutory requirement was necessary to ensure fairness and justice in this particular case. Consequently, the FWC granted Ms. Duga relief from unfair dismissal, and she was entitled to seek reinstatement or compensation as appropriate.

The final orders included the reinstatement of Ms. Duga to her former position at Fitness First, or if reinstatement was not possible, the payment of compensation equivalent to the lost wages and entitlements she would have received had she continued in her employment. Additionally, the FWC ordered Fitness First to pay Ms. Duga's legal costs associated with the application.

Lavinia Duga v Fitness First

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established