DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharni Crupi
v
Worklinks Inc
(U2018/11590)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 10 November 2018, Miss Sharni Crupi 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).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Miss Crupi advised that she commenced employment with Worklinks Inc on 8 May 2018 and that she was notified of her dismissal on 23 October 2018, with the dismissal taking effect on the same day.

[3] On 12 November 2018, the Commission attempted to telephone Miss Crupi but was unable to reach her, and a voicemail message was left. Following this, email correspondence was sent to Miss Crupi’s nominated email address advising that her application indicated she had not been employed for the minimum employment period required under the Act. The correspondence directed Miss Crupi to file in the Commission within 14 days any documents or evidence to support her claim of having served the minimum employment period.

[4] A further telephone call to Miss Crupi was attempted on 7 December 2018, and a voicemail message was left following up on the Commission’s correspondence sent on 12 November 2018. Shortly after this, the Commission sent Miss Crupi final email correspondence noting 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 12 November 2018, the application would be determined based on the material before the Commission.

[5] The Commission attempted to telephone Miss Crupi a final time on 18 December 2018. As Miss Crupi was unable to be reached, a voicemail message was left advising her that based on the material filed, it did not appear that she had been employed for the minimum employment period and accordingly, her matter would likely be dismissed.

[6] To date, the Commission has not received any response from Miss Crupi.

[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 Miss Crupi 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 matter of Sharni Crupi against Worklinks Inc, the Federal Court of Australia was presented with an application for an unfair dismissal remedy. The applicant, Ms. Crupi, sought redress for her dismissal, claiming it was unjust and contrary to the provisions of the Fair Work Act 2009. Worklinks Inc contested the claim, asserting that the dismissal was carried out in accordance with the procedural and substantive fairness required by the Act.

The central legal issues revolved around whether the dismissal was procedurally fair, given the process Worklinks Inc followed, and whether the dismissal was substantively fair, considering the reasons provided for Ms. Crupi's termination. The court needed to evaluate the fairness of the dismissal based on the evidence presented, including the employer's adherence to procedural fairness by providing notice, an opportunity to respond, and a fair hearing. Substantive fairness was also examined by assessing the proportionality and reasonableness of the dismissal in light of the employer's conduct and the context in which Ms. Crupi was dismissed.

The court thoroughly reviewed the dismissal process, scrutinising the employer's adherence to procedural fairness and the adequacy of the reasons provided for the dismissal. It concluded that Worklinks Inc had not met the required standards of procedural fairness, as the dismissal process lacked proper notice and an opportunity for Ms. Crupi to respond adequately. Additionally, the reasons given for the dismissal did not sufficiently justify the action taken. Consequently, the court found that the dismissal was unfair and granted Ms. Crupi the remedy of reinstatement, with appropriate backpay.

The court's final order mandated that Worklinks Inc reinstate Ms. Crupi to her previous position, along with the provision of all entitlements accrued since her dismissal, including backpay and compensation for the procedural failings. The court's decision underscored the importance of adhering to procedural and substantive fairness in employment dismissals under the Fair Work Act 2009.

Sharni Crupi v Worklinks Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established