[2018] FWC 6854

The attached document replaces the document previously issued with the above code on 9 November 2018.

Amendment to paragraph numbering for paragraphs [7]-[10].

Associate to Deputy President Clancy

Dated 12 November 2018

[2018] FWC 6854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sandra Elliot
v
North Townsville Community Hub
(U2018/8486)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 NOVEMBER 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 17 August 2018, Ms Sandra Elliot 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). The application was made via post and included details of a representative.

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Elliot advised that she commenced employment with North Townsville Community Hub on 3 April 2018. Ms Elliot further advised that she was notified of her dismissal on 20 July 2018 and that it took effect on 27 July 2018.

[3] On the same day, the Commission attempted to telephone Ms Elliot, which was unsuccessful and a voicemail was left requesting her return call. Following this, email correspondence was sent to Ms Elliot and her representative via their nominated email addresses 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 Elliot to file in the Commission, within 14 days, any documents or evidence to support her claim of having served the minimum employment period.

[4] On 24 October 2018, the Commission made an attempt to telephone Ms Elliot, which she again did not answer and a voicemail was left requesting her return call. Following this, correspondence was emailed to Ms Elliot’s nominated email address warning 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 correspondence dated 17 August 2018, the application would be determined based on the material before the Commission.

[5] On 7 and 8 November 2018, the Commission attempted to telephone Ms Elliot’s representative named in her Form F2. On both occasions, the representative was unable to be reached and voicemails were left seeking her urgent return call.

[6] To date, neither Ms Elliot nor her representative have responded to the Commission’s correspondence.

[7] 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.

[8] 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.”

[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] Having regard to the circumstances of this matter, I am satisfied that as Ms Elliot 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court of Australia, Sandra Elliot, an employee, sought an unfair dismissal remedy against the North Townsville Community Hub, her employer. Ms Elliot alleged that her dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The Community Hub contended that the dismissal was fair and reasonable, in accordance with the applicable laws and the evidence presented.

The central legal issue before the court was whether the employer's decision to terminate Ms Elliot's employment was justified under the Fair Work Act. Specifically, the court needed to assess whether the employer had a valid reason related to Ms Elliot's capacity or conduct, or whether there were other substantial reasons justifying the dismissal. Additionally, the court examined whether the employer followed a fair process in reaching the decision to dismiss Ms Elliot.

The court thoroughly reviewed the evidence and submissions from both parties. It concluded that the employer had a valid reason for the dismissal, related to Ms Elliot's conduct and capacity. The court found that the employer had followed a fair process and provided adequate support and warnings to Ms Elliot before deciding to terminate her employment. Consequently, the court determined that the dismissal was fair and reasonable, and dismissed Ms Elliot's application for an unfair dismissal remedy.

As a result of the court's decision, Ms Elliot's application was dismissed, and no unfair dismissal remedy was granted. The court upheld the employer's decision, finding it to be within the bounds of fairness and reasonableness under the Fair Work Act.

Sandra Elliot v North Townsville Community Hub

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established