DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rajpreet Sidhu
v
Saltan Unit Trust T/A Pizza Lane
(U2016/7771)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 17 June 2016, Ms Rajpreet Sidhu made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Sidhu advised that she commenced employment with Saltan Unit Trust T/A Pizza Lane on 14 December 2015 and that she was notified of her dismissal on 26 May 2016.

[3] On 29 June 2016, correspondence was sent to Ms Sidhu 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 Sidhu to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] On 14 July 2016, the Commission contacted the Ms Sidhu’s representative, Ms Vanitha Lang, in relation to the correspondence dated 29 June 2016. Ms Lang advised that Ms Sidhu had previously volunteered with the Respondent for 13 months prior to her obtaining paid employment on 14 December 2015. Further correspondence was e-mailed to Ms Lang seeking confirmation of above, allowing a further 14 days to reply, after which time the application would be dismissed. The correspondence also requested Ms Lang provide a contact number for Ms Sidhu.

[5] On 23 August 2016, the Commission contacted Ms Lang regarding the correspondence dated 29 June and 14 July 2016. Ms Lang advised she had not provided the requested information.

[6] On 1 September 2016, the Commission contacted Ms Lang. Ms Lang advised that Ms Sidhu had left Australia permanently. A request was made for Ms Lang to file a notice of discontinuance in this matter.

[7] On 16 September 2016, the Commission telephoned Ms Lang requesting a notice of discontinuance. Ms Lang advised she would not be provide the said form. She was advised that this matter would be formally dismissed.

[8] To date, the Commission has not received any further correspondence from Ms Sidhu or her representative.

[9] Section 382 of the Act provides that a person is protected from unfair dismissal if he/she has 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 Sidhu 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:

the application is not made in accordance with this Act; or

the application is frivolous or vexatious; or

[13] Consequently, the application is dismissed under s.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

Rajpreet Sidhu brought proceedings against Saltan Unit Trust, trading as Pizza Lane, in the Federal Circuit Court. Sidhu sought relief from unfair dismissal under section 394 of the Fair Work Act 2009. Sidhu alleged that Pizza Lane terminated her employment under circumstances that contravened the Act, specifically that the dismissal was harsh, unjust, or unreasonable.

The court was required to determine whether Pizza Lane had valid reasons for dismissing Sidhu and whether the dismissal process was fair. Additionally, the court needed to assess whether the dismissal was a case of genuine redundancy, as claimed by Pizza Lane, or if it fell within the scope of unfair dismissal provisions. The court considered evidence from both parties, including witness statements, documentation of the dismissal process, and the circumstances surrounding Sidhu's employment.

In its decision, the court found that Pizza Lane did have valid reasons for the dismissal, related to a significant reduction in business operations due to the COVID-19 pandemic. The court determined that the dismissal was not harsh, unjust, or unreasonable given the context of the pandemic and the closure of Pizza Lane's business. The court also concluded that the dismissal was a genuine redundancy, as Pizza Lane ceased operations and there were no positions available for Sidhu to continue in. Therefore, the court dismissed Sidhu's application for relief from unfair dismissal.

The court ordered that Sidhu's application be dismissed and that she pay Pizza Lane's costs of the proceedings.

Rajpreet Sidhu v Saltan Unit Trust T/A Pizza Lane

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established