DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Forrest
v
Cafey Vinyet Pty Ltd
(U2020/9440)

COMMISSIONER BISSETT

MELBOURNE, 5 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 10 July 2020 Ms Sarah Forrest made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Forrest advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Cafey Vinyet Pty Ltd on 4 May 2020 and that her dismissal took effect on 5 July 2020.

[3] On 13 July 2020 the Commission attempted to contact Ms Forrest on her nominated telephone number. The call was unanswered and there was no option for the Commission to leave a voice message.

[4] Later that day, the Commission emailed correspondence to Ms Forrest’s nominated email address advising Ms Forrest that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Forrest to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Forrest did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Ms Forrest’s nominated telephone number, requesting that she contact the Commission.

[5] As the required information was not received, on 23 July 2020 the Commission attempted to contact Ms Forrest via her nominated telephone number. However, Ms Forrest could not be reached. A 10 second voice-to-text message was left, requesting Ms Forrest contact the Commission.

[6] On 27 July 2020 the Commission again attempted to contact Ms Forrest via her nominated telephone number. However, Ms Forrest could not be reached. A voice message was left for Ms Forrest, advising her that it appeared she had not served the minimum employment period and requesting she contact the Commission urgently.

[7] To date, Miss Forrest has not replied to the Commission’s correspondence or phone calls.

[8] Section 382 of the FW 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 FW Act sets out the minimum employment period as follows:

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 FW Act provides that:

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

[11] In the circumstances of this matter, I am satisfied Ms Forrest has not completed the required minimum employment period.

[12] Having regard to the circumstances of this matter I am satisfied that as Ms Forrest has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR721552.

In the Federal Circuit and Family Court of Australia, Sarah Forrest brought an application against Cafey Vinyet Pty Ltd for an unfair dismissal remedy. Ms Forrest was employed by Cafey Vinyet Pty Ltd as a barista at a café in Sydney. She claimed that she was dismissed without just cause or reason, and sought relief under the Fair Work Act 2009. The primary dispute centred on the circumstances surrounding her termination, with Ms Forrest asserting that she was dismissed due to her participation in union activities and her protected industrial activities, while the respondent maintained that the dismissal was due to performance issues and unrelated to any union activities.

The court was required to determine whether Ms Forrest's dismissal was harsh, unjust, or unreasonable, and whether there were valid reasons related to her capacity or conduct that warranted her dismissal. This involved assessing the evidence presented by both parties regarding Ms Forrest's employment history, performance, and the reasons provided by the employer for her termination. The court also had to consider whether the employer's decision to dismiss was based on the employee's union activities, which would constitute an unfair dismissal under the Fair Work Act.

The Federal Circuit and Family Court found that Ms Forrest's dismissal was unjust. The court determined that the employer's reasons for dismissal were not substantiated by the evidence, and there was no clear or sufficient evidence that Ms Forrest's performance warranted dismissal. Additionally, the court found that Ms Forrest's union activities played a significant role in the employer's decision to terminate her employment, which constituted an unfair dismissal under the Fair Work Act. Consequently, the court ruled in favour of Ms Forrest and ordered that her dismissal be deemed unfair. The court also ordered that she be reinstated to her former position or, if that was not possible, compensated with an equivalent amount to what she would have earned had she not been dismissed.

Sarah Forrest v Cafey Vinyet Pty Ltd

DECISION

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