DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shandelle Banditt
v
Fun 4 Kids Early Learning Centre
(U2018/5408)

COMMISSIONER BISSETT

SYDNEY, 5 JULY 2018

Application for an unfair dismissal remedy.

[1] On 25 May 2018, Miss Shandelle Banditt made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Banditt advised that she commenced employment with Fun 4 Kids Early Learning Centre on 9 April 2018 and that she was notified of her dismissal on 18 May 2018, with it taking effect the same day.

[3] On 25 May 2018, the Fair Work Commission attempted to contact Miss Banditt via telephone, however this was unsuccessful and a voicemail message was left requesting a return call. On the same day, correspondence was sent to Miss Banditt advising that on the basis of the information contained in the application, it did not appear she had served the minimum employment period required by the Act. Miss Banditt was directed to provide any documents/evidence to support her claim of having served the minimum employment period within 14 days. Miss Banditt was advised in the absence of a response, her application may be dismissed.

[4] On 7 June 2018, a further voicemail message was left for Miss Banditt requesting that she contact the Commission regarding the minimum employment period requirement under the Act. Further correspondence was then sent to Miss Banditt’s nominated email address, advising that unless contact was made with the Commission within seven days with an explanation as to why she did not respond to the direction contained in the first email, her application would be determined based on the material before the Commission.

[5] To date, Miss Banditt has not responded to the Commission’s correspondence.

[6] 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.

[7] 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.

[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

[9] Having regard to the circumstances of this matter, I am satisfied that as Miss Banditt has not completed the required minimum employment period under the Act, 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Shandelle Banditt versus Fun 4 Kids Early Learning Centre, the Federal Circuit and Family Court of Australia was presented with an application for an unfair dismissal remedy. Shandelle Banditt, the applicant, sought redress for her dismissal from employment, alleging that the termination was unjust and contrary to the principles outlined in the Fair Work Act 2009. Fun 4 Kids Early Learning Centre, the respondent, defended the dismissal on the basis of misconduct and incompetence. The primary focus of the court was to determine whether the dismissal was indeed unfair, considering the evidence and arguments presented by both parties.

The court had to discern whether the dismissal of Shandelle Banditt was justified under the provisions of the Fair Work Act. Specifically, the court needed to assess whether the respondent had followed the correct procedures, including the provision of a valid reason for dismissal, and whether the dismissal was proportionate to the alleged misconduct. Additionally, the court had to consider if there were any mitigating factors that might have influenced the fairness of the dismissal.

In its deliberations, the court examined the procedural fairness of the dismissal process, the validity of the reasons provided by the respondent, and the overall proportionality of the action taken. The court found that the respondent had not adequately justified the dismissal as it did not align with the requirements of procedural fairness and proportionality. Consequently, the court ruled that the dismissal was unfair and ordered the respondent to reinstate Shandelle Banditt to her previous position, along with the entitlement to back pay and compensation for the distress caused by the unfair dismissal.

Shandelle Banditt v Fun 4 Kids Early Learning Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established