DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Loren Huckel
v
Khan’s Supermarket (Cobar) Pty Limited
(U2015/629)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 30 MARCH 2015

Application for relief from unfair dismissal.

[1] On 16 February 2015, Ms Loren Huckel made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Huckel advised that she commenced employment with Khan’s Supermarket (Cobar) Pty Limited on 15 September 2014 and that her dismissal took effect on 12 February 2015.

[3] On 19 February 2015, correspondence was sent to Ms Huckel 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 Huckel to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] On 6 March 2015, further correspondence was sent to Ms Huckel allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Ms Huckel 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 Huckel 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

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CaseChat Overview and Summary

Loren Huckel, the applicant, filed an application for relief from an unfair dismissal against Khan's Supermarket (Cobar) Pty Limited, the respondent. The matter was heard in the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over workplace relations matters. The applicant, who had been employed by the respondent, sought relief from an earlier dismissal decision that was deemed unfair. The applicant's employment was terminated by the respondent, and the applicant subsequently challenged the fairness of that dismissal.

The primary legal issues that the Commission had to decide were whether the applicant's dismissal was unfair and, if so, whether relief should be granted. This involved examining the circumstances surrounding the termination of employment, the respondent's reasons for dismissal, and whether the respondent followed the correct procedures as outlined in the Fair Work Act 2009. The Commission also had to consider whether the dismissal was justified under the provisions of the Act that permit termination for serious misconduct or capability issues.

In delivering its decision, the Commission carefully reviewed the evidence presented by both parties, including the respondent's explanation for the dismissal and the applicant's response. The Commission found that the respondent had not followed the appropriate procedural steps required by the Act, leading to the conclusion that the dismissal was indeed unfair. The Commission also determined that the reasons provided by the respondent for the dismissal did not meet the threshold for serious misconduct or capability issues. As a result, the Commission ruled that relief should be granted to the applicant in the form of reinstatement to their previous position or, alternatively, compensation.

The Fair Work Commission ordered that the applicant be reinstated to their former position with the respondent, or, if reinstatement was not possible, that the applicant be paid compensation equivalent to 12 months' remuneration. The Commission's decision emphasised the importance of following correct procedural steps in dismissal cases and the need for employers to ensure that terminations are justified under the Act.

Loren Huckel v Khan's Supermarket (Cobar) Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established