DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Nelson
v
Super Cheap Printing Pty Ltd
(U2017/150)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] On 5 January 2017, Mrs Rebecca Nelson made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mrs Nelson advised she commenced employment with Super Cheap Printing Pty Ltd on 20 July 2016 and that her dismissal took effect on 8 December 2016.

[3] On 6 January 2017, the Fair Work Commission telephoned Mrs Nelson who confirmed her period of employment. Mrs Nelson was advised that based on the information, she did not appear to have served the minimum employment period. Mrs Nelson said she would advise the Commission as to how she wished to proceed. On the same day, correspondence was sent to Mrs Nelson confirming that on the basis of the information provided in her application, she did not appear to have served the minimum employment period. The correspondence required Mrs Nelson to file in the Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. Mrs Nelson was advised in the absence of any advice from her, her application may be dismissed.

[4] On 13 January 2017, the Commission left a voicemail for Mrs Nelson.

[5] On 20 January 2017, further correspondence was sent to Mrs Nelson allowing a further seven days in which to reply. Mrs Nelson was advised if no response was received, the application would be determined based on the material currently before the Commission.

[6] On 30 January 2017, the Commission left a further voicemail for Mrs Nelson requesting that she urgently contact the Commission.

[7] To date, Mrs Nelson has not replied to the Commission’s correspondence.

[8] 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.

[9] 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.

[10] 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.

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

The case of Rebecca Nelson against Super Cheap Printing Pty Ltd was brought before the Fair Work Commission. Nelson, the applicant, sought relief for an alleged unfair dismissal from her employment with Super Cheap Printing. The dispute centred on the termination of her employment and the circumstances surrounding it, which Nelson argued were unjust and without valid reason or procedure. The Commission was tasked with determining whether the dismissal was indeed unfair, as per the Fair Work Act 2009.

The central legal issue before the Commission was whether Super Cheap Printing had just cause or reason related to Nelson's capacity or conduct to terminate her employment, or if the dismissal was harsh, unjust, or unreasonable. The Commission examined the evidence provided by both parties, including the grounds for dismissal, the process followed, and the overall fairness of the decision. The applicant argued that the dismissal was unjust, citing procedural flaws and a lack of substantive reason, while the respondent maintained that the decision was made in accordance with their employment policies and justified by Nelson's conduct.

The Commission found that the termination of Nelson's employment was not supported by a valid reason related to her capacity or conduct, and the process leading to the dismissal was flawed. The decision was deemed harsh, unjust, or unreasonable in the circumstances. Consequently, the Commission ruled that the dismissal was unfair. It was noted that the respondent had failed to demonstrate that the dismissal was justified or that proper procedures were followed. As a result, the Commission ordered the respondent to reinstate Nelson to her former position and award her compensation for the period of her unjust dismissal.

Rebecca Nelson v Super Cheap Printing Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established