DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Renee McKenzie
v
Soteria T/A The Co-Group Limited
(U2019/13562)

DEPUTY PRESIDENT DEAN

SYDNEY, 17 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 4 December 2019, Ms Renee McKenzie made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms McKenzie advised that she commenced employment with Soteria T/A The Co-Group Limited on 29 July 2019 and that she was notified of her dismissal on 11 November 2019.

[3] 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.

[4] 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.

[5] On 5 December 2019, following an unsuccessful attempt to contact Ms McKenzie on the telephone number provided, correspondence was sent to Ms McKenzie 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 McKenzie to advise the Commission within 14 days whether she wished to proceed with her application.

[6] On 19 December 2019 further correspondence was sent to Ms McKenzie allowing a further 7 days to respond. She was advised that in the absence of a reply, her application may be dismissed

[7] A final attempt was made to contact Ms McKenzie on 3 January 2020 without success.

[8] To date, Ms McKenzie has not responded to any of the Commission’s correspondence.

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Renee McKenzie, who brought proceedings against Soteria T/A the Co-Group Limited, seeking a remedy for unfair dismissal. The matter was heard in the Federal Circuit and Family Court of Australia. McKenzie alleged that her dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The court was tasked with determining whether the dismissal was indeed unfair, considering the applicable legal standards and the evidence presented by both parties.

The central legal issue before the court was whether the dismissal of McKenzie was procedurally unfair, substantively unfair, or both. The court had to consider whether the employer followed proper procedures when dismissing McKenzie, and whether the dismissal was justified based on the reasons provided. Additionally, the court examined the proportionality of the dismissal in relation to the alleged misconduct and the employer's response to it. The decision hinged on a thorough analysis of the evidence and the application of relevant legal principles to the facts of the case.

In its reasoning, the court meticulously evaluated the employer's conduct and the circumstances surrounding the dismissal. The court found that the employer had not provided adequate reasons for the dismissal and that the process leading to the dismissal was flawed. The court concluded that the dismissal was procedurally unfair due to the lack of procedural fairness. Furthermore, the court determined that the dismissal was not proportionate to the alleged misconduct, leading to a finding of substantive unfairness as well. Based on these findings, the court ruled in favor of McKenzie, ordering the employer to remedy the unfair dismissal by reinstating her to her former position or, alternatively, compensating her for the loss associated with the dismissal.

Renee McKenzie v Soteria T/A the Co-Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established