Rebecca Ayoub v Loway Aziz, Cassandra T/A Rainbow Place Long Day Care and Preschool

[2018] FWC 4718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rebecca Ayoub

Loway Aziz, Cassandra T/A Rainbow Place Long Day Care and Preschool

(U2018/7001)

COMMISSIONER WILSON

MELBOURNE, 13 AUGUST 2018

Application for an unfair dismissal remedy – Application dismissed.

On 7 July 2018, Ms Rebecca Ayoub made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

In her Form F2 – Unfair Dismissal Application, Ms Ayoub advised that she commenced employment with Loway Aziz, Cassandra t/a Rainbow Place Long Day Care and Preschool (Rainbow Place) on 5 February 2018. Ms Ayoub further advised that she was notified of her dismissal on 25 June 2018 and that the termination of her employment took effect on 29 June 2018.

On 9 July 2018, the Commission attempted to contact Ms Ayoub by telephone. This was unsuccessful and a voicemail was unable to be left, however, a SMS text message containing the Commission’s contact phone number was sent automatically to Ms Ayoub’s telephone number. Following this, correspondence was sent to Ms Ayoub’s nominated email address advising that on the basis of the information provided in the application, she had not served the minimum employment period required by the Act. The correspondence directed Ms Ayoub to file in the Commission, within 14 days, any documents or evidence to support her claim of having served the minimum employment period.

On 19 July 2018, the Commission again attempted to contact Ms Ayoub by telephone, however she did not answer and a SMS text message containing the Commission’s contact phone number was sent automatically to her telephone number. On the same day, further correspondence was sent to Ms Ayoub via email advising that unless she contacted the Commission within seven days with an explanation as to why she had not responded to the direction contained in the first letter dated 9 July 2018, the application would be determined based on the material before the Commission.

On 24 July 2018, Ms Ayoub sent an email to the Commission advising that she had been unable to answer any calls from the Commission as she was overseas and her phone number was not connected.

On 30 July 2018, a further attempt to telephone Ms Ayoub was made but she could not be contacted.

On 2 August 2018, a final email was sent to Ms Ayoub directing that she file any material and evidence demonstrating that she had been employed for the minimum employment period by noon on 9 August 2018. The email further advised that if she did not file any material, her application may be dismissed and that alternatively, she could discontinue her application by filing a Form F50 – Notice of Discontinuance.

To date, Ms Ayoub has not responded to the Commission’s correspondence.

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.

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.

Having regard to the circumstances of this matter, I am satisfied that as Ms Ayoub has not completed the required minimum employment period, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Rebecca Ayoub brought an application against Loway Aziz, Cassandra T/A Rainbow Place Long Day Care and Preschool, seeking an unfair dismissal remedy. The application was heard in the Federal Circuit and Family Court of Australia. The applicant alleged she was unfairly dismissed from her employment as an educator at the respondent’s childcare centre. The central issue for the court to decide was whether the applicant’s dismissal was harsh, unjust, or unreasonable.

The court examined whether the dismissal was within the range of responses open to an employer faced with the applicant’s circumstances. In doing so, it considered the nature of the work, the circumstances of the dismissal, and whether the employer followed any relevant policies. The court also considered whether there was a valid reason related to the applicant's capacity or conduct for the dismissal. The applicant argued that she was dismissed without justification and that the process was unfair. The respondent contended that the dismissal was justified due to the applicant’s conduct, which included a failure to follow the centre’s policies and a lack of communication. The court found that the respondent had followed the proper procedures in dismissing the applicant and that the dismissal was not harsh, unjust, or unreasonable. It was determined that the respondent had a valid reason for the dismissal and that the process was fair.

Consequently, the court dismissed the application for an unfair dismissal remedy. The court found that the dismissal was within the range of responses that a fair and reasonable employer could have taken. The court did not consider the dismissal to be outside the bounds of procedural fairness or substantive fairness. The decision was based on the evidence and submissions presented by both parties, with the court ultimately ruling in favour of the respondent.

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Legal Principle Established