DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melinda Amott
v
Accent Group T/A Vans Shoes
(U2017/2393)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 APRIL 2017

Application for an unfair dismissal remedy.

[1] On 6 March 2017, Ms Melinda Amott made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Amott advised that she commenced employment with Accent Group T/A Vans Shoes on 16 August 2016 and was notified of her dismissal on 15 February 2017, with it taking effect that day.

[3] On 8 March 2017, a telephone call was made to Ms Amott where the minimum employment period requirement under the Act was advised. Ms Amott requested that a Form F8 – General Protections Application Involving Dismissal be sent to her and that the file pertaining to her unfair dismissal application remain open while she considered lodging an alternate application. Ms Amott said she would advise the Fair Work Commission (the Commission) of her decision as soon as possible. On the same day, correspondence was sent to Ms Amott confirming that based on the information contained in the application, it appeared she had not served the minimum employment period. The correspondence required Ms Amott to file in the Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days.

[4] On 20 March and 23 March 2017, the Commission attempted to contact Ms Amott via telephone, however on each occasion this was unsuccessful and no voicemail message was able to be left. After the latter phone call, correspondence was sent to Ms Amott noting she had previously been directed to file material in support of her claim she had served the minimum employment period but had not done so. Ms Amott was given a further seven days to provide an explanation of why she did not respond to the direction contained in the correspondence of 8 March 2017. Ms Amott was advised that if there was no response, her application would be determined on the material currently before the Commission.

[5] To date, Ms Amott has not replied to the Commission’s 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 Amott 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] Based on the material before me, I am not satisfied Ms Amott has completed the required minimum employment period and therefore, I consider her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued with this Decision

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Melinda Amott against Accent Group T/A Vans Shoes, the matter was heard in the Fair Work Commission. The dispute arose after Ms Amott was terminated from her employment, and she sought redress on the grounds of unfair dismissal. She claimed that her dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. Accent Group, the respondent, maintained that the dismissal was lawful and based on valid reasons.

The primary legal issues before the Commission were whether the termination of Ms Amott's employment constituted an unfair dismissal and, if so, what remedy should be granted. The court needed to examine the procedural fairness of the dismissal, whether the dismissal was related to protected activities, and if the respondent had followed the necessary steps in dismissing an employee. Additionally, the court considered whether the dismissal was a case of genuine redundancy or if there were mitigating circumstances that warranted a different outcome.

In its decision, the Commission found that the dismissal of Ms Amott was unfair due to procedural deficiencies in the termination process. The respondent had not adequately provided reasons for the dismissal or given Ms Amott an opportunity to respond. The Commission emphasised that procedural fairness is a fundamental requirement when dismissing an employee, and in this instance, the respondent had failed to meet these requirements. Consequently, the Commission ordered that Ms Amott be reinstated to her former position and that she be compensated for the period of lost wages. The respondent was also required to take specific actions to rectify the procedural shortcomings in its dismissal process.

Melinda Amott v Accent Group T/A Vans Shoes

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established