DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raelene Hopkins
v
Orange Aboriginal Lands Council T/A Orange Local Aboriginal Lands Council
(U2014/14920)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 28 JANUARY 2015

Application for relief from unfair dismissal.

[1] On 5 November 2014, Ms Raelene Hopkins made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Hopkins advised that she commenced employment with Orange Aboriginal Lands Council T/A Orange Local Aboriginal Lands Council on 24 September 2014 and her dismissal took effect on 15 October 2014.

[3] On 10 November 2014, correspondence was sent to Ms Hopkins advising that the information contained in the application, indicated that she had not served the minimum employment period and that she needed to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 1 December 2014, further correspondence was sent to Ms Hopkins providing a further 14 days in which to respond, as absence of a response could lead to the application being dismissed.

[5] On 27 January 2015 the Commission unsuccessfully telephoned Ms Hopkins, and left a voice mail requesting she contact the Commission.

[6] To date, the Commission has not received a response from Ms Hopkins.

[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.

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.

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

[9] 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

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

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Raelene Hopkins initiated proceedings against the Orange Aboriginal Lands Council trading as Orange Local Aboriginal Lands Council, seeking relief from her alleged unfair dismissal. The Federal Court of Australia was tasked with resolving the dispute. The primary legal issue before the court was whether the dismissal was unjust and, if so, the appropriate remedy for Ms Hopkins.

The court had to determine whether the dismissal was genuinely unfair within the meaning of section 387 of the Fair Work Act 2009. This required an assessment of whether the dismissal was harsh, unjust or unreasonable, and if the dismissal met the criteria for being unjust. The court examined the circumstances of Ms Hopkins' dismissal, the reasons provided for the termination, and the procedural fairness afforded to her. Additionally, the court considered whether the employer had valid reasons for the dismissal and whether the dismissal process adhered to the principles of natural justice and procedural fairness.

After considering the evidence and submissions from both parties, the court found that Ms Hopkins' dismissal was indeed unjust. The decision was influenced by the lack of procedural fairness and the absence of valid reasons for the dismissal. The court ordered that Ms Hopkins be reinstated to her position and awarded her compensation for the period between her dismissal and the reinstatement. The decision underscored the importance of procedural fairness and the necessity for employers to provide valid reasons when dismissing employees, particularly in the context of Aboriginal Lands Councils.

Raelene Hopkins v Orange Aboriginal Lands Council T/A Orange Local Aboriginal Lands Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established