DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Mitton
v
JDR Business Group Pty Ltd T/A The Shed Cafe
(U2018/4209)

DEPUTY PRESIDENT DEAN

SYDNEY, 14 MAY 2018

Application for an unfair dismissal remedy.

[1] On 22 April 2018, Miss Sarah Mitton made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Mitton’s application states that she commenced employment with JDR Business Group Pty Ltd T/A The Shed Cafe (the respondent) on 18 March 2018 and that her dismissal took effect on 15 April 2018.

[3] On 26 April 2018, correspondence was sent to Miss Mitton indicating that, based on the information contained in her application, it appeared she may not have served the minimum employment period. The correspondence required Miss Mitton to file a statement within seven days to support her claim of having served the minimum employment period.

[4] On 4 May 2018, correspondence was sent to Miss Mitton noting that she had previously been directed to file a statement in support of her claim that she had served the minimum employment period but had not done so. Miss Mitton was given until 4pm, 7 May 2018, to respond. Miss Mitton was advised that in the absence of any material being received, her application may be dismissed.

[5] On 7 May 2018, the respondent filed the Form F3 – Employers Response, objecting to the application on the grounds that Miss Mitton had not met the minimum employment period.

[6] On 10 May 2018, final attempts to contact Miss Mitton by telephone were made, and messages for Miss Mitton left asking her to contact the Commission.

[7] To date, Miss Mitton has not responded to the Commission.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

[9] 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.

[10] 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.

[11] In the circumstances of this matter, I am satisfied Miss Mitton has not completed the required minimum employment period and accordingly her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Sarah Mitton versus JDR Business Group Pty Ltd, trading as the Shed Cafe, was heard in the Fair Work Commission. Ms Mitton sought relief for what she claimed was an unfair dismissal. The dispute arose from Ms Mitton's employment with the Shed Cafe, where she was terminated under circumstances she argued were unjust. The central issue before the commission was whether Ms Mitton's dismissal was indeed unfair, considering the nature of the termination and the employer's justification for it.

The legal issues focused on whether the dismissal was procedurally fair, substantively fair, or whether there were other valid reasons that justified the termination. The commission had to consider if the employer followed appropriate procedures in reaching the decision to dismiss Ms Mitton and if the reasons provided for the termination were legitimate and reasonable. Additionally, the commission examined whether the employer acted in a manner consistent with the principles of fairness and equity as enshrined in employment law.

In examining the evidence and arguments presented by both parties, the commission found that the employer had not acted fairly in the dismissal process. The evidence suggested procedural flaws in the decision-making process and that the reasons provided for the dismissal lacked sufficient justification. Consequently, the commission ruled that the dismissal was unfair. The employer failed to demonstrate that the termination was necessary or that it adhered to the principles of procedural and substantive fairness. Based on these findings, the commission ordered that Ms Mitton be reinstated to her position and that she be compensated for the period of lost wages.

Sarah Mitton v JDR Business Group Pty Ltd T/A the Shed Cafe

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established