DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mere Young
v
UCA Assembly Limited T/A Frontier Services
(U2015/4731)

COMMISSIONER ROE

MELBOURNE, 24 JUNE 2015

Application for relief from unfair dismissal.

[1] Ms Young made an application for unfair dismissal by telephone on 10 April 2015. Ms Young was employed in Western Australia as a Respite Worker for the Pilbara Mobile Respite Service for Frontier Services. Frontier Services is an agency of the National Assembly of the Uniting Church of Australia. Frontier Services is also known as and trades as Uniting Church in Australia Frontier Services. Frontier Services objected to the unfair dismissal application on the grounds that Ms Young’s employer is not a national system employer because:

● She was employed in Western Australia and was employed in that State at the time of the dismissal
● Western Australia has not referred its industrial relations powers in respect to non-national system employer to the Commonwealth.
● National system employer is defined by s.14a Fair Work Act 2009 (the Act) and the employer is not a constitutional corporation which is the only part of the definition which could have relevance to the employment. To be a constitutional corporation an entity must be a trading or financial corporation.
● Frontier Services and Uniting Church in Australia Frontier Services are unincorporated entities.

[2] I have carefully considered the various documents provided by the parties including but not limited to the letter of appointment, the pay slips, the entries from the ASIC data base and ABN look up. I am satisfied that Frontier Services and Uniting Church in Australia Frontier Services are not incorporated entities. Ms Young was employed in Western Australia at the time of the dismissal and therefore these entities are not national system employers. The fact that Frontier Services does engage in some trading activity may be relevant if the entities were incorporated but it is not relevant given that they are not incorporated. It cannot be a trading or financial corporation.

[3] The pay slips of Ms Young also referred to UCA Assembly Limited as the employer. This entity is incorporated. UCA Assembly Limited is referred to in the Constitution of the Uniting Church and associated regulations as the body to hold properly for the Uniting Church. Frontier Services and Uniting Church in Australia Frontier Services are listed as business names for UCA Assembly Limited. I am satisfied that UCA Assembly Limited could be regarded as the employer despite the contract of employment because Ms Young’s pay slips throughout the period of her employment referred to UCA Assembly Limited as her employer. UCA Assembly Limited however is not a trading corporation. This is evidenced by the financial report of that entity which was submitted by Mr Shaw in this matter.

[4] I am satisfied that Ms Young was not employed by a trading or financial corporation at the time of her dismissal and as she was employed in Western Australia at the time of her dismissal she was not employed by a national system employer and she is therefore not a national system employees.

[5] It is not suggested that a modern award or an enterprise agreement covers the employment of Ms Young. Ms Young had the minimum employment period and earns less than the high income threshold. She would therefore be protected from unfair dismissal under s.382 of the Act if she was able to make the application. Section 6(3) of the Act provides that Part 3-2 Unfair Dismissal “deals with unfair dismissal of national system employees.” As Ms Young is not a national system employee she cannot achieve an unfair dismissal remedy under the Act. The application has no reasonable prospect of success. 1

[6] The Application in this matter is dismissed and an order to this effect will be issued.

COMMISSIONER

Appearances:

Ms. M Young on behalf of herself.

Ms. M Doyle on behalf of the Respondent.

Hearing details:

2015

Melbourne (by telephone)

June 23

1 Fair Work Act 2009 (Cth) s.587(1)(c).

Printed by authority of the Commonwealth Government Printer

In the matter of Mere Young, an applicant, against Uca Assembly Limited T/A Frontier Services, the respondent, the case came before the Fair Work Commission. The applicant, Ms Young, sought relief from an alleged unfair dismissal. She claimed that her termination was unjust, without proper cause, and that her rights under the Fair Work Act 2009 were breached. The respondent, Uca Assembly Limited, argued that the dismissal was justified due to Ms Young's failure to meet the performance standards expected of her role.

The central legal issues before the Commission were whether the dismissal was indeed unfair and whether there were valid reasons justifying Ms Young's termination. The Commission needed to determine if the respondent had followed appropriate procedures and if the dismissal was proportionate to the alleged breach of performance standards. Additionally, the Commission had to consider whether there were mitigating factors or if the dismissal was handled in a procedurally fair manner.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, concluded that the dismissal was unfair. The Commission found that Uca Assembly Limited had not adequately addressed Ms Young's performance issues through the proper channels, and the termination process lacked procedural fairness. The Commission also highlighted that the respondent did not provide sufficient opportunities for Ms Young to remedy her performance deficiencies. As a result, the Commission ordered the respondent to reinstate Ms Young to her previous position and to pay her compensation for the period of unlawful termination.

Mere Young v Uca Assembly Limited T/A Frontier Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established