Lillian Macken-Haynes v Pavement Limited Brands/Gumboots Australia Pty Ltd

[2014] FWC 6224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lillian Macken-Haynes
v
Pavement Limited Brands/Gumboots Australia Pty Ltd
(U2014/8538)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 29 July 2014, Ms Lillian Macken-Haynes made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Macken-Haynes advised that she commenced employment with Pavement Limited Brands/Gumboots Australia Pty Ltd on 2 June 2014 and that her dismissal took effect on 18 July 2014.

[3] On 1 August 2014, correspondence was sent to Ms Macken-Haynes 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 Macken-Haynes to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 21 August 2014, further correspondence was sent to Ms Macken-Haynes allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Ms Macken-Haynes did not reply to that correspondence.

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

[9] 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.

[10] Consequently, the application is dismissed under 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

CaseChat Overview and Summary

Lillian Macken-Haynes brought an application for relief from unfair dismissal against Pavement Limited Brands/Gumboots Australia Pty Ltd in the Fair Work Commission. Ms Macken-Haynes claimed that her dismissal was unfair due to procedural errors by the employer. The employer argued that the dismissal was for valid reasons and followed proper procedures.

The legal issues before the Commission involved whether the employer had followed the correct procedures in dismissing Ms Macken-Haynes and whether the dismissal was fair in the circumstances. The central points of contention were the adequacy of the reasons provided for dismissal and whether the employer complied with procedural fairness by giving Ms Macken-Haynes an opportunity to respond to the allegations against her.

The Commission found that the employer failed to provide sufficient reasons for the dismissal, which rendered the decision unfair. Additionally, it was determined that Ms Macken-Haynes was not given an adequate opportunity to respond to the allegations, which breached procedural fairness. The employer's failure to follow these critical steps meant that the dismissal was not just and equitable. Consequently, the Commission granted Ms Macken-Haynes relief from unfair dismissal.

The Fair Work Commission ordered that Ms Macken-Haynes be reinstated to her former position with Pavement Limited Brands/Gumboots Australia Pty Ltd and that she receive compensation for lost wages and entitlements from the date of her dismissal until her reinstatement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established