Marion Boehm v Gary Taylor T/A Australian Hotel Motel Summary

[2013] FWC 7386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marion Boehm
v
Gary Taylor T/A Australian Hotel Motel
(U2013/2221)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 25 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 6 July 2013, Ms Marion Boehm made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Boehm advised that she commenced employment with Gary Taylor T/A Australian Hotel Motel on 25 May 2013 and that her dismissal took effect on 4 July 2013.

[3] On 11 July 2013 and 8 August 2013, correspondence was sent to Ms Boehm 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 Boehm to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] Ms Boehm 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 Boehm 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

The case of Marion Boehm versus Gary Taylor trading as Australian Hotel Motel involves an application by Boehm for relief from an unfair dismissal. Boehm, the applicant, sought to challenge the termination of her employment by Taylor, the respondent, who is the proprietor of the Australian Hotel Motel. The Fair Work Commission, as the relevant tribunal, was tasked with determining whether the dismissal was indeed unfair under the Fair Work Act 2009. The central dispute revolves around the legitimacy of Boehm's dismissal and whether it was justified, procedurally fair, or related to any discriminatory grounds.

The key legal issues before the Commission were whether the dismissal was harsh, unjust, or unreasonable, and whether it was related to a protected attribute such as gender. Boehm argued that her dismissal was unfair, given the lack of procedural fairness in the process, and possibly discriminatory. Taylor contended that the dismissal was justified due to Boehm's misconduct and that all due process was followed. The Commission had to assess the evidence provided by both parties, including the circumstances leading to the dismissal, the procedural fairness of the process, and the overall reasonableness of the decision to terminate Boehm's employment.

In its decision, the Commission considered the nature and circumstances of the dismissal, the procedural fairness of the process, and the fairness of the outcome in light of the evidence. The Commission concluded that the dismissal was procedurally unfair as Boehm was not given an opportunity to respond to the allegations of misconduct prior to being dismissed. Additionally, the Commission found that the dismissal was unjust, as it was not proportionate to the alleged misconduct. The Commission also considered the possibility of discriminatory motives but found no evidence to support this claim. Consequently, the Commission determined that the dismissal was unfair and granted Boehm relief from the unfair dismissal.

Marion Boehm v Gary Taylor T/A Australian Hotel Motel

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established