Lisa Bermingham v Bras N Things Pty Ltd

[2013] FWC 7354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Bermingham
v
Bras N Things Pty Ltd
(U2013/10382)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 11 June 2013, Ms Lisa Bermingham made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Bermingham advised that she commenced employment with Bras N Things Pty Ltd in February 2013 and that her dismissal took effect on 5 June 2013.

[3] On 17 July and 8 August 2013, correspondence was sent to Ms Bermingham pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] To date, Ms Bermingham 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 Ms Bermingham 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

Lisa Bermingham lodged an application for relief from unfair dismissal against Bras N Things Pty Ltd, contending that her dismissal was unjust and that she was entitled to reinstatement and compensation. The application was heard by the Fair Work Commission (FWC), an independent statutory body with the authority to resolve workplace disputes in Australia. The central issue before the FWC was whether Ms. Bermingham's dismissal was indeed unfair under the Fair Work Act 2009. This involved evaluating the reasons for the dismissal, the procedural fairness of the process, and whether the dismissal met the criteria for being deemed unfair, including if it was a case of genuine redundancy or if there was a valid reason related to her capacity or conduct.

The FWC examined the employer's evidence and Ms. Bermingham's submissions, focusing on the procedural fairness of the dismissal process and whether the employer followed the correct procedures. The employer argued that the dismissal was due to redundancy, with the business restructuring and a reduction in workforce as the primary reason. Ms. Bermingham, on the other hand, contended that she was singled out and that her dismissal was not part of a genuine redundancy process. After considering the evidence, the FWC determined that the employer had not adequately demonstrated that the dismissal was procedurally fair or part of a genuine redundancy process. The employer failed to show that all reasonable steps were taken to avoid the dismissal, and there was evidence suggesting that Ms. Bermingham's position was targeted rather than being part of a broader redundancy process.

Consequently, the FWC ruled in favour of Ms. Bermingham, finding that her dismissal was unfair. The Commission ordered that Ms. Bermingham be reinstated to her former position and awarded her compensation for the period of time she was not employed, along with other financial entitlements. This decision underscores the importance of following proper procedures when dismissing employees and the need for employers to substantiate claims of redundancy with clear and convincing evidence. The decision serves as a reminder to employers of the stringent requirements under the Fair Work Act when dismissing employees, particularly in cases of alleged redundancy.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established