[2017] FWC 3889

The attached document replaces the document previously issued with the above code on 25 July 2017.

The reference to “Mr” in paragraph [3] is replaced with “Ms”

Ben Nicholson

Associate to Deputy President Clancy

Dated 26 July 2017

[2017] FWC 3889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Traill
v
The Tony White Group T/A Trinity Auto Group
(U2017/6996)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 JULY 2017

Application for an unfair dismissal remedy.

[1] On 29 June 2017, Ms Michelle Traill made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Traill advised that her commenced employment with The Tony White Group T/A Trinity Auto Group on 31 January 2017 and that her dismissal took effect on 8 June 2017.

[3] On 30 June 2017, a telephone call was made to Ms Traill, however there was no answer and a voicemail was left. On the same day, correspondence was sent to Ms Traill confirming that based on the information contained in the application, it appeared she had not served the minimum employment period. The correspondence required Ms Traill to file in the Fair Work Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. Ms Traill was advised in the absence of any material being received, her application may be dismissed.

[4] On 30 June 2017, Ms Traill telephoned the Commission and advised that she wished to consider the correspondence sent to her by the Commission dated 30 June 2017.

[5] On 14 July 2017, correspondence was sent to Ms Traill noting that 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 Traill was given a further seven days to provide an explanation of why she did not respond to the direction contained in the correspondence of 30 June 2017. Ms Traill was advised that if there was no response, her application would be determined on the material currently before the Commission.

[6] On 21 July 2017, a final attempt to contact Ms Traill via telephone was made and a voicemail was left seeking an urgent return call.

[7] To date, Ms Traill has not responded to the Commission’s correspondence.

[8] 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.

[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] In the circumstances of this matter, I am satisfied Ms Traill has not completed the required minimum employment period and 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 shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Michelle Traill applied for an unfair dismissal remedy against The Tony White Group T/A Trinity Auto Group. Traill, a former employee, contended that her dismissal was unjust and sought reinstatement or compensation. The case was heard in the Fair Work Commission, which has jurisdiction over unfair dismissal claims under the Fair Work Act 2009.

The primary legal issues revolved around whether Traill's dismissal was procedurally unfair, substantively unfair, or if it fell within a valid reason for dismissal. Traill argued that the process leading to her dismissal was flawed and that the decision to terminate her employment was unreasonable. Conversely, the employer asserted that the dismissal was both procedurally and substantively fair, citing valid reasons such as poor performance and misconduct.

The Commission examined the evidence presented by both parties. It considered the fairness of the dismissal process, including whether Traill was given adequate notice and an opportunity to respond to the allegations against her. The Commission also assessed the employer's reasons for dismissal, weighing them against the evidence provided. Ultimately, the Commission determined that the employer's process was fair, and the reasons for dismissal were valid. Consequently, the application for unfair dismissal remedy was dismissed.

The Commission ordered that Michelle Traill's application be rejected, and no remedy for unfair dismissal was granted. The decision was based on the finding that the employer had followed fair procedures and that the dismissal was justified.

Michelle Traill v The Tony White Group T/A Trinity Auto Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established