DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lorraine Bode
v
Flintwood Disability Services Incorporated
(U2015/951)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 9 APRIL 2015

Application for relief from unfair dismissal.

[1] On 5 March 2015, Ms Lorraine Bode made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Bode advised that she commenced employment with Flintwood Disability Services Incorporated on 13 August 2014 and that her dismissal took effect on 12 February 2015.

[3] On 6 March 2015, correspondence was sent to Ms Bode 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 Bode to advise the Fair Work Commission within 14 days whether she wished to proceed with her application and noted that in the event that no notification was received within 14 days, the application may be dismissed.

[4] Ms Bode did not respond to that correspondence.

[5] On 23 March 2015, further correspondence was sent to Ms Bode allowing a further 14 days in which to reply. This correspondence noted that unless advice was received within 14 days, the application would be dismissed.

[6] To date, Ms Bode has not replied to that correspondence.

[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:

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.

[9] In the circumstances of this matter, I am satisfied Ms Bode 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

(c) the application has no reasonable prospects of success.

[11] Consequently, the application is dismissed under section 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

The Federal Circuit and Family Court of Australia heard an application by Lorraine Bode against Flintwood Disability Services Incorporated, contesting the fairness of her dismissal. Ms. Bode alleged she was unfairly dismissed due to her disability and related absences from work. The application was brought under the Fair Work Act 2009, seeking relief for what she deemed an unjust termination.

The primary legal issue the court had to address was whether the dismissal of Ms. Bode was harsh, unjust, or unreasonable. The court considered various factors, including the nature of the dismissal, the circumstances surrounding it, and the employer's adherence to procedural fairness. Additionally, the court examined whether the dismissal was due to her disability or related absences, which would constitute unfair discrimination under the Act.

The court meticulously reviewed the evidence presented by both parties, focusing on the reasons for Ms. Bode's termination and the employer's handling of her absences and disability. It considered whether the employer had followed appropriate procedures and whether the dismissal was a proportionate response to the situation. Ultimately, the court found that the dismissal was not unfair as the employer had acted reasonably and in accordance with the relevant laws. The court noted that the employer had attempted to manage Ms. Bode's absences and had not discriminated against her on the basis of her disability.

The court dismissed Ms. Bode's application, concluding that the dismissal was not harsh, unjust, or unreasonable. As such, no relief was granted, and Ms. Bode's application was unsuccessful. The court's decision was based on a thorough analysis of the evidence and the applicable legal standards, ensuring a fair and just outcome in accordance with the Fair Work Act 2009.

Lorraine Bode v Flintwood Disability Services Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established