Samantha Gangemi v Innisfail RSL Sub branch Summary

[2014] FWC 1734

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Gangemi
v
Innisfail RSL - Sub branch
(U2014/4126)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 MARCH 2014

Application for relief from unfair dismissal.

[1] On 30 January 2014, Ms Samantha Gangemi made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Gangemi advised that she commenced employment with Innisfail RSL - Sub branch on 18 August 2013 and that her dismissal took effect on 23 January 2014.

[3] On 31 January 2014 and 18 February 2014, correspondence was sent to Ms Gangemi pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] To date, Ms Gangemi did not reply to that correspondence.

[5] 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.

[6] 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.

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

[8] 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.

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

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between Samantha Gangemi and the Innisfail RSL Sub branch regarding her dismissal from employment. Ms Gangemi sought relief from the decision, claiming it was unfair under the Fair Work Act. The case was heard by the Commission, presided over by Member F. M. Wilson.

The primary legal issue before the Commission was whether the dismissal of Ms Gangemi was harsh, unjust, or unreasonable, as defined by section 387 of the Fair Work Act. This required an examination of the circumstances surrounding her termination, including the reasons for dismissal, the process followed, and whether there were procedural fairness considerations that warranted relief.

In delivering the decision, the Commission considered the evidence provided by both parties, including testimonies and documentation related to Ms Gangemi's employment and the reasons for her dismissal. The Commission assessed whether the employer had just cause for termination and whether the process adhered to procedural fairness. The Commission concluded that the dismissal was not unfair, finding that the employer had followed appropriate procedures and had just cause to terminate the employment. The application for relief was therefore dismissed. The Commission ordered that the application be dismissed and no further relief be granted.

Samantha Gangemi v Innisfail RSL Sub branch

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established