DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natalie Fyt
v
Curtain Style Pty Ltd T/A Décor Blinds and Curtains
(U2014/16219)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 9 APRIL 2015

Application for relief from unfair dismissal.

[1] On 30 December 2014, Ms Natalie Fyt made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Fyt advised that she commenced employment with Curtain Style Pty Ltd (Curtain Style) on 22 September 2014 and that she was notified of her dismissal on 8 December 2014, with the dismissal taking effect on 9 December 2014.

[3] On 13 February 2015, correspondence was sent to Ms Fyt 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 Fyt to advise the Fair Work Commission within 10 days whether she wished to proceed with her application.

[4] Ms Fyt did not reply to that correspondence.

[5] On 25 February 2015, further correspondence was sent to Ms Fyt requesting that she complete and return documentation by close of business on 4 March 2015. It was advised that if no response was received, I would determine the matter on the papers.

[6] Ms Fyt did not reply to that correspondence.

[7] On 6 March 2015, a staff member of the Fair Work Commission spoke to Ms Fyt who said she was of the view that she had not served the minimum period of employment. The staff member advised Ms Fyt that she could seek advice from the Employment Law Centre of Western Australia. Ms Fyt requested these contact details be emailed to her. This was done the same day and a Notice of Discontinuance was also attached to the email.

[8] To date, Ms Fyt has not responded to that correspondence.

[9] 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.

[10] Section 383 of the Act sets out the 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] In the circumstances of this matter, I am satisfied Ms Fyt has not completed the required minimum employment period and her application has no reasonable prospects of success.

[12] 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

[13] Consequently, the application is dismissed under section 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

Natalie Fyt lodged an application for relief from unfair dismissal against Curtain Style Pty Ltd, trading as Décor Blinds and Curtains. The primary dispute involved the termination of Ms Fyt's employment, which she argued was unfair. The case was heard and determined in the Fair Work Commission, an Australian federal workplace relations tribunal.

The legal issues before the Commission were whether Ms Fyt's dismissal was procedurally unfair and whether the dismissal was substantively unfair. Procedural unfairness was assessed by examining whether the employer provided adequate notice and an opportunity for Ms Fyt to respond to the allegations leading to her dismissal. Substantive unfairness involved evaluating if the termination was justified in the circumstances, considering factors such as the nature of the misconduct, the employer's response, and whether there were mitigating circumstances.

The Commission found that the employer failed to provide sufficient procedural fairness as it did not give Ms Fyt adequate notice and an opportunity to respond to the allegations. Additionally, the employer did not adequately investigate the matter before deciding to terminate her employment. The Commission concluded that the dismissal was both procedurally and substantively unfair. Consequently, the application for relief from unfair dismissal was upheld, and the Commission ordered the employer to reinstate Ms Fyt to her former position and pay her compensation for the unlawful termination.

Natalie Fyt v Curtain Style Pty Ltd T/A Décor Blinds and Curtains

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established