Nazmun Naher Mozumder v Little Zak's Academy

[2021] FWC 6645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nazmun Naher Mozumder
v
Little Zak’s Academy
(U2021/10755)

COMMISSIONER BISSETT

MELBOURNE, 21 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 24 November 2021 Ms Nazmun Naher Mozumder made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Mozumder advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Little Zak's Academy (the Respondent) on 9 November 2021 and that her dismissal took effect on 18 November 2021.

[3] On 25 November 2021 the Commission attempted to contact Ms Mozumder on her nominated telephone number. A voicemail message was left requesting that she contact the Commission as it appeared she had not served the minimum employment period.

[4] Later that day the Commission emailed correspondence to Ms Mozumder’s nominated email address advising her that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Mozumder to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence warned that if Ms Mozumder did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 3 December 2021 the Commission attempted to contact Ms Mozumder via her nominated telephone number. However, Ms Mozumder could not be reached. A voicemail message was left requesting that she contact the Commission.

[6] On 6 December 2021 the Commission contacted the applicant via her nominated telephone number. Ms Mozumder confirmed that she did not meet the minimum employment period however did not wish to withdraw her application until such time as she had considered her options.

[7] On 13 December 2021 the Commission attempted to contact Ms Mozumder via her nominated telephone number and a voicemail message was left advising that if she did not contact the Commission by close of business 14 December, the matter may be dismissed.

[8] To date, Ms Mozumder has not replied to the Commission’s correspondence or otherwise contacted the Commission since 6 December 2021.

[9] Section 382 of the FW 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 FW Act sets out the minimum employment period as follows:

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.

[11] Section 587(1) of the FW Act provides that:

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

[12] Having regard to the circumstances of this matter I am satisfied that as Ms Mozumder has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

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The case involved Mozumder, an employee of Little Zak's Academy, who brought an application for unfair dismissal remedy to the Fair Work Commission. Mozumder alleged that her employment was terminated without just cause or reason, contrary to the provisions of the Fair Work Act 2009. The primary issue before the Commission was whether the Academy had valid grounds to dismiss Mozumder and whether the dismissal was procedurally fair.

The Commission considered whether the Academy had a valid reason to dismiss Mozumder, focusing on the adequacy of the evidence presented regarding her performance and conduct. It was crucial to determine if the dismissal was a genuine exercise of the employer's right to terminate employment, as opposed to an arbitrary or capricious action. Additionally, the Commission assessed whether the procedural fairness was observed in the termination process, including whether Mozumder was given a reasonable opportunity to respond to the allegations against her. The evidence provided by both parties was meticulously reviewed to ascertain the legitimacy of the dismissal.

The Fair Work Commission found that the Academy did not have just cause to dismiss Mozumder. The reasons provided for termination were not substantiated by sufficient evidence, and the process lacked procedural fairness. The Commission emphasised that the employer had not adequately demonstrated that Mozumder's performance or conduct warranted dismissal. Consequently, the application for unfair dismissal remedy was upheld, and the dismissal was deemed unfair. Mozumder was awarded compensation for the unfair termination.

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Legal Principle Established