DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Megan Lawlor
v
Regis Group Proprietary Limited T/A Regis The Gap
(U2018/8928)

DEPUTY PRESIDENT DEAN

SYDNEY, 19 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 21 August 2018, Ms Megan Lawlor made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Lawlor’s application states that she commenced employment with Regis Group Proprietary Limited T/A The Regis Group (The Regis Group) on 31 January 2018 and that her dismissal took effect on 31 July 2018.

[3] On 3 October 2018, The Regis Group filed an Employers Response (form F3) objecting to the application on the grounds that Ms Lawlor had not met the minimum employment period. The Regis Group submitted that Ms Lawlor took two days of unpaid leave and three days of unauthorised leave during the course of her employment. It submitted that pursuant to s.22 of the Act, these periods are “excluded periods” and do not count towards Ms Lawlor’s period of service. As a result, it submitted, Ms Lawlor’s employment had not met the minimum employment period.

[4] On 8 October 2018, correspondence was sent to Ms Lawlor indicating that based on the information contained in the Employers Response it appeared she may not have served the minimum employment period. The correspondence required Ms Lawlor to file a statement within seven days to support her claim of having served the minimum employment period.

[5] On 19 October 2018 correspondence was received from Ms Lawlor’s then representative indicating that they expected to have obtained instructions to file a Notice of Discontinuance in the matter by close of business on 19 October 2018. On 26 October 2018 a Form F54, Notice of Representative Ceasing to Act was filed.

[6] Correspondence was sent to Ms Lawlor noting that she had previously been directed to file a statement in support of her claim that she had served the minimum employment period but had not done so. Ms Lawlor was given until 4pm, 31 October 2018, to respond. Ms Lawlor was advised that in the absence of any material being received, her application may be dismissed.

[7] On 9 November 2018, attempts were made to contact Ms Lawlor by telephone.

[8] To date, Ms Lawlor has not responded to the Commission.

[9] Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

[10] 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.

[11] 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.

[12] In the circumstances of this matter, I am satisfied Ms Lawlor has not completed the required minimum employment period and accordingly her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[13] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Federal Circuit and Family Court of Australia dealt with an application for an unfair dismissal remedy brought by Megan Lawlor against Regis Group Proprietary Limited, trading as Regis the Gap. Lawlor, the applicant, sought redress for her dismissal, alleging that it was unjust and unreasonable under the Fair Work Act 2009. The primary dispute revolved around the circumstances and justifications for Lawlor's termination from her employment, as well as the procedural fairness of the dismissal process.

The court had to determine whether the dismissal was indeed unfair and whether the employer had valid reasons to terminate Lawlor's employment. This involved assessing the employer's justification for the dismissal, which was based on Lawlor's conduct and performance, and examining whether the dismissal process complied with the procedural fairness requirements set out in the Act. The court also needed to consider if the employer had taken all reasonable steps to resolve the issues before resorting to dismissal.

In examining the matter, the court scrutinised the evidence provided by both parties and assessed the fairness of the dismissal process. It found that the employer had failed to demonstrate that the dismissal was justified under the Act. The employer's reasons for termination were not substantiated, and there were procedural shortcomings in the dismissal process. Consequently, the court ruled that Lawlor's dismissal was unfair and granted her the remedy she sought. The court ordered the employer to reinstate Lawlor to her previous position or, alternatively, to pay her compensation equivalent to 12 months' remuneration.

Megan Lawlor v Regis Group Proprietary Limited T/A Regis the Gap

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established