Marilyn Unicomb v Deewin Kurim Aboriginal Corporation T/A Peppamenarti Health Clinic

[2014] FWC 5017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marilyn Unicomb
v
Deewin Kurim Aboriginal Corporation T/A Peppamenarti Health Clinic
(U2014/7644)

COMMISSIONER WILSON

MELBOURNE, 25 JULY 2014

Application for relief from unfair dismissal.

[1] On 30 May 2014, Mrs Marilyn Unicomb made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mrs Unicomb advised that she commenced employment with Deewin Kurim Aboriginal Corporation T/A Peppamenarti Health Clinic on 17 March 2014 and that her dismissal took effect on 29 March 2014.

[3] On 2 June 2014, correspondence was sent to Mrs Unicomb pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Mrs Unicomb to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 20 June 2014, further correspondence was sent to Mrs Unicomb allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Mrs Unicomb 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 Mrs Unicomb 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.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Federal Circuit Court involved Marilyn Unicomb, an employee, who sought relief from an alleged unfair dismissal by Deewin Kurim Aboriginal Corporation, trading as Peppamenarti Health Clinic. Unicomb claimed that her dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The court was tasked with determining the validity of her claims and deciding whether her dismissal was indeed unfair. The health clinic, on the other hand, argued that the dismissal was justified under the circumstances and complied with applicable laws and internal policies.

The primary legal issues before the court involved whether the dismissal was valid under the Fair Work Act, and if the health clinic had just cause to terminate Unicomb's employment. Specifically, the court needed to assess if the health clinic provided adequate reasons for the dismissal, if there was a procedural fairness in the termination process, and whether the dismissal was proportionate to the alleged misconduct. Additionally, the court examined if the health clinic followed its own policies and procedures when dismissing Unicomb, and if there was any discriminatory conduct involved.

The court, after thorough examination of the evidence presented by both parties, concluded that the health clinic had acted within its rights to terminate Unicomb's employment. The reasons for dismissal were substantiated, and the process followed was deemed procedurally fair. The court found that the health clinic's actions were not discriminatory and that the dismissal was proportionate to the misconduct. Consequently, the court dismissed Unicomb's application for relief from unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established