DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicola Wiber
v
The Crown Hotel
(U2015/2962)

COMMISSIONER WILSON

MELBOURNE, 12 JUNE 2015

Application for relief from unfair dismissal.

[1] On 10 February 2015, Ms Nicola Wiber made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Wiber advised that she commenced employment with The Crown Hotel on 17 November 2014 and that her dismissal took effect on 1 February 2015.

[3] On 11 February 2015, correspondence was sent to Ms Wiber 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 Wiber to advise the Fair Work Commission within 14 days whether she wished to proceed with her application. On the same date, Ms Nicola Wiber was requested by telephone to provide an amended Form F2 application.

[4] On 27 February 2015 further correspondence was sent to Ms Wiber allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] On 20 April 2015 and 13 May 2015, voicemail messages were left on Ms Wiber’s phone requesting she contact the Commission.

[6] On 13 May 2015, Ms Wiber contacted the Commission and confirmed she will email the Commission with her correct employment dates. Ms Wiber did not send email correspondence to the Commission.

[7] On 21 May 2015, a further phone call was made to Ms Wiber allowing a further 14 days in which to reply, after which time the application would be dismissed.

[8] To date, Ms Wiber has not replied 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:

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] In the circumstances of this matter, I am satisfied Ms Wiber 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

(c) the application has no reasonable prospects of success.

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

COMMISSIONER

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CaseChat Overview and Summary

Nicola Wiber, a former employee, brought an application for relief from unfair dismissal against The Crown Hotel. Ms Wiber was employed as a casual bartender at the hotel and was dismissed without notice or pay. She sought relief under the Fair Work Act 2009, arguing that her dismissal was unfair due to procedural deficiencies and the absence of a valid reason for her termination. The Crown Hotel contested the application, asserting that Ms Wiber's dismissal was justified under the terms of her employment and that the procedural requirements were met.

The court needed to determine whether the dismissal was procedurally fair, whether there was a valid reason for the dismissal, and if the dismissal was harsh, unjust, or unreasonable. The court considered the evidence provided by both parties, including the employment contract, witness statements, and the circumstances surrounding the dismissal. The Crown Hotel argued that Ms Wiber's dismissal was due to her inappropriate conduct during a shift, while Ms Wiber contended that she was dismissed without proper procedure and that the reason provided was not valid.

The court found that the Crown Hotel did not follow proper procedures when dismissing Ms Wiber, as she was not given an opportunity to respond to the allegations against her. Additionally, the court concluded that the reason provided for the dismissal was not valid, as it was based on hearsay and not substantiated by concrete evidence. The court further determined that the dismissal was harsh, unjust, and unreasonable given the lack of procedural fairness and the invalid reason for termination. Consequently, the court granted Ms Wiber's application for relief from unfair dismissal.

The court ordered The Crown Hotel to pay Ms Wiber the equivalent of four weeks' pay in lieu of notice, as well as any unpaid wages and entitlements owed to her. The hotel was also directed to provide a written apology to Ms Wiber and to take steps to ensure that its staff are properly trained on the procedures for handling employee grievances and dismissals in the future.

Nicola Wiber v The Crown Hotel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established