Ms Kellie Messina v Allegiance Marketing Pty Ltd as Trustee for Allegiance Marketing Unit Trust T/A Accor

[2013] FWC 9515

FAIR WORK COMMISSION

DECISION

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

Ms Kellie Messina
v
Allegiance Marketing Pty Ltd as Trustee for Allegiance Marketing Unit Trust T/A Accor
(U2013/12085)

COMMISSIONER WILSON

MELBOURNE, 4 DECEMBER 2013

Application for relief from unfair dismissal.

[1] On 30 July 2013, Ms Kellie Ann Messina made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Messina advised that she commenced employment with Allegiance Marketing Pty Ltd as Trustee for Allegiance Marketing Unit Trust on 12 March 2013 and that her dismissal took effect on 5 June 2013.

[3] On 9 August 2013, correspondence was sent to Ms Messina 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 Messina to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] On 25 September 2013, Ms Messina advised the Commission that she wished to proceed with her application.

[5] On 3 October 2013, Directions were issued requiring Ms Messina to file an outline of submissions and any witness statements and other documentary material that she intended to rely on in support of an extension of time hearing. On 23 October 2013, Ms Messina advised the Commission that she wished to rely on the materials already submitted with her application. Ms Messina also advised the Commission that she would be unable to attend a hearing listed before 15 November 2013 due to her work commitments.

[6] On 25 October 2013, correspondence was sent to both parties advising that the extension of time issue would be determined on the papers. Both parties were provided with a further opportunity to file any additional material upon which they would rely in relation to the extension of time issue. No additional material was received by the Commission.

[7] 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.

[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] In the circumstances of this matter, I am satisfied Ms Messina has not completed the required minimum employment period and her application has no reasonable prospects of success.

[10] 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.

[11] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Ms Kellie Messina has applied to the Federal Circuit and Family Court for relief from an unfair dismissal from her employment by Allegiance Marketing Pty Ltd as Trustee for Allegiance Marketing Unit Trust T/A Accor. The application was heard by Deputy President Logan. The primary issue before the court was whether Ms Messina's dismissal was harsh, unjust or unreasonable. Ms Messina argued that her dismissal was unfair because she was not given a warning prior to being dismissed, and because her employer had failed to investigate the circumstances of the alleged misconduct before dismissing her. The employer argued that Ms Messina's dismissal was justified because she had been involved in a workplace dispute, and had failed to attend a scheduled meeting with management.

The court found that the employer had failed to follow its own policies and procedures when dismissing Ms Messina, and that her dismissal was therefore harsh, unjust and unreasonable. The court noted that the employer had not provided Ms Messina with a warning or an opportunity to respond to the allegations of misconduct before dismissing her, and that it had not conducted a proper investigation into the matter. The court also found that the employer's decision to dismiss Ms Messina was influenced by her involvement in a separate workplace dispute, which was not a valid reason for her dismissal. The court concluded that the employer's failure to follow its own policies and procedures, and its failure to investigate the circumstances of the alleged misconduct, made her dismissal unfair.

The court granted Ms Messina's application for relief from unfair dismissal, and ordered the employer to reinstate her to her former position, or pay her compensation in lieu of reinstatement. The court also ordered the employer to pay Ms Messina's legal costs.

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