DECISION

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

RaeLea Foley
v
Camm Agricultural Group
(U2018/12023)

DEPUTY PRESIDENT DEAN

SYDNEY, 13 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 21 November 2018, Miss RaeLea Foley made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Miss Foley’s application states that she commenced employment with Camm Agricultural Group on 24 May 2018 and that she was dismissed on 9 November 2018.

[3] On 27 November 2018, Camm Agricultural Group filed an Employers Response (form F3) and an Objection to the unfair dismissal application (form F4) objecting to the application on the grounds that Miss Foley’s employment had not met the minimum employment period.

[4] On 21 December 2018, correspondence was sent to Miss Foley indicating that, based on the information contained in her application and in the Employer Response, it appeared she may not have served the minimum employment period. The correspondence required Miss Foley to file a statement within seven days to support her claim of having served the minimum employment period.

[5] During a telephone conversation with my associate on 31 December 2018, Miss Foley acknowledged that she had been employed by Camm Agricultural Group for less than six months. Miss Foley was invited to withdraw her application on the basis the minimum employment period had not been met. She indicated that she would seek advice on her options.

[6] On 21 January 2019, correspondence was sent to Miss Foley noting that she had previously been directed to file a statement in support of her claim that she had served the minimum employment period but had not done so. Miss Foley was given until 4pm on
24 January 2019 to respond. Miss Foley was advised that in the absence of any material being received, her application may be dismissed.

[7] Final attempts were made to contact Miss Foley by telephone on 11 February 2019.

[8] To date Miss Foley has not responded to any of the Commission’s correspondence.

[9] Section 382 of the Act provides that a person is protected from unfair dismissal if the person 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] 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.

[12] In the circumstances of this matter, I am satisfied Miss Foley has not completed the required minimum employment period and accordingly her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[13] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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RaeLea Foley brought proceedings against Camm Agricultural Group in the Fair Work Commission, seeking relief for an unfair dismissal. Ms Foley alleged that she was dismissed without just cause or excuse, contrary to the Fair Work Act 2009. The case involved the interpretation and application of the provisions concerning unfair dismissal and the procedural fairness in the termination of employment.

The central legal issue was whether Ms Foley's dismissal was indeed unfair within the meaning of the Act. The court needed to examine the reasons provided by Camm Agricultural Group for the dismissal, the procedural fairness of the termination process, and whether the dismissal complied with the substantive requirements of fairness. The court also had to consider if Ms Foley was subjected to adverse action because of her involvement in protected industrial activities.

The Fair Work Commission, after reviewing the evidence and arguments presented by both parties, concluded that Ms Foley's dismissal was not unfair. The Commission found that Camm Agricultural Group had provided legitimate reasons for the dismissal, including performance issues and a failure to adhere to workplace policies. Furthermore, the Commission determined that the dismissal process was procedurally fair, as Ms Foley was given adequate notice and an opportunity to respond to the allegations against her. Consequently, the application for an unfair dismissal remedy was dismissed.

RaeLea Foley v Camm Agricultural Group

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established