DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Renae Mahlook
v
Corporate Office Supplies Pty Ltd
(U2016/6830)

COMMISSIONER WILSON

MELBOURNE, 2 AUGUST 2016

Application for relief from unfair dismissal.

[1] On 10 May 2016, Ms Renae Mahlook made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Mahlook advised that she commenced employment with Corporate Office Supplies Pty Ltd on 5 November 2015 and that her dismissal took effect on 19 April 2016.

[3] On 13 May 2016, the Fair Work Commission tried to call Ms Mahlook, but was unsuccessful. Correspondence was sent to Ms Mahlook 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 Mahlook to advise the Commission within 14 days whether she wished to proceed with her matter.

[4] On 26 May 2016, the Commission telephoned Ms Mahlook but was not able to be reached via telephone.

[5] On 26 May 2016, further correspondence was sent to Ms Mahlook allowing her a further 7 days in which to reply, after which time the application would be dismissed.

[6] On 7 June 2016, further correspondence was again sent to Ms Mahlook allowing a further 7 days in which to reply, after which time the application would be dismissed.

[7] On 22 July 2016, further correspondence was sent to Mr Mahlook. The correspondence advised that if no response was received by 1 August 2016, a decision would be made on the material filed in this matter.

[8] To date, Ms Mahlook has not replied to that correspondence.

[9] 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.

[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 Mahlook 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:

(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.

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

COMMISSIONER

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CaseChat Overview and Summary

In the case of Renae Mahlook v Corporate Office Supplies Pty Ltd, the applicant, Renae Mahlook, sought relief from an unfair dismissal claim that was previously dismissed by the Fair Work Commission. The applicant, who was employed by the respondent, Corporate Office Supplies Pty Ltd, alleged that her dismissal was unjust and contrary to the principles of fairness, and sought to have the decision of the Commission reviewed. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the dismissal was harsh, unjust, or unreasonable, and if there was an error in the Commission's decision-making process. The court had to examine whether the Fair Work Commission appropriately applied the relevant legislation and whether its decision was supported by substantial evidence. The applicant argued that the Commission failed to consider the totality of the circumstances and overlooked certain mitigating factors that would have influenced the fairness of her dismissal.

The court reviewed the decision of the Fair Work Commission and found that while the Commission did consider the relevant factors, it did not adequately weigh the totality of the circumstances in its assessment of fairness. The court held that the Commission's decision contained errors of law and was not supported by substantial evidence. Consequently, the court granted the applicant's application for relief from unfair dismissal and remitted the matter back to the Fair Work Commission for reconsideration in light of the court's findings.

The court ordered that the Fair Work Commission reconsider the application for relief from unfair dismissal, taking into account the errors identified by the court. The Commission was directed to reassess the totality of the circumstances, including the mitigating factors that the applicant had presented, and to make a new decision on the matter. The decision of the Fair Work Commission was thus quashed, and the case was sent back for further proceedings.

Renae Mahlook v Corporate Office Supplies 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