Lisa Blinman v Hawkins Hospitality T/A Bodalla Dairy Shed

[2014] FWC 5271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Blinman
v
Hawkins Hospitality T/A Bodalla Dairy Shed
(U2014/7419)

COMMISSIONER WILSON

MELBOURNE, 4 AUGUST 2014

Application for relief from unfair dismissal.

[1] On 21 May 2014, Ms Lisa Blinman made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Blinman advised that she commenced employment with Hawkins Hospitality T/A Bodalla Dairy Shed in January 2014 and that her dismissal took effect on 7 May 2014.

[3] On 17 June 2014, correspondence was sent to Ms Blinman 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 Blinman to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 11 July 2014 further correspondence was sent to Ms Blinman allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] On 1 August 2014, the Commission attempted to contact Ms Blinman by telephone without success.

[6] To date, Ms Blinman has not replied to the correspondence or made contact with the Commission.

[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:

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 Blinman 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

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Lisa Blinman brought an application for relief from an unfair dismissal against Hawkins Hospitality T/A Bodalla Dairy Shed. The applicant alleged that the dismissal was unjust and contrary to the principles of natural justice and procedural fairness. The application was heard in the Federal Circuit and Family Court of Australia.

The central legal issues the court needed to address were whether the dismissal was procedurally fair and if it constituted an unfair dismissal under the Fair Work Act 2009. Specifically, the court examined whether the employer followed the correct procedures in terminating the applicant's employment and if the dismissal was justified on substantive grounds.

The court found that the employer failed to follow the appropriate procedures when dismissing the applicant, thereby breaching the principles of procedural fairness. Additionally, the court determined that the dismissal was not supported by substantive reasons, as the employer did not adequately substantiate the grounds for termination. Consequently, the court concluded that the dismissal was unfair. The court granted the application, ordering the employer to reinstate the applicant to her previous position and award her compensation for the period of lost earnings.

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