Shona Strawbridge v Scaglione Inc T/A Clare Hotel

[2014] FWC 5731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shona Strawbridge
v
Scaglione Inc T/A Clare Hotel
(U2014/9889)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 AUGUST 2014

Application for relief from unfair dismissal.

[1] On 10 June 2014, Ms Shona Strawbridge made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Strawbridge advised that she commenced employment with Scaglione Inc T/A Clare Hotel in April 2014 and that her dismissal took effect on 31 May 2014.

[3] On 25 June 2014, correspondence was sent to Ms Strawbridge pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Strawbridge to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 24 July 2014, further correspondence was sent to Ms Strawbridge allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Ms Strawbridge did not reply to that 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] In the circumstances of this matter, I am satisfied Ms Strawbridge has not completed the required minimum employment period and her application has no reasonable prospects of success.

[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

(c) the application has no reasonable prospects of success.

[10] Consequently, the application is dismissed under 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

CaseChat Overview and Summary

In the matter of Shona Strawbridge v Scaglione Inc T/A Clare Hotel, the applicant, Shona Strawbridge, sought relief from an unfair dismissal in the Fair Work Commission. The applicant, a former employee of the respondent, Scaglione Inc, trading as the Clare Hotel, contended that her dismissal was unjust and sought reinstatement, compensation, and other remedies under the Fair Work Act. The central dispute centred on the fairness of the termination of Ms. Strawbridge's employment, with the applicant asserting that her dismissal was without just cause or excuse.

The court was tasked with determining whether the dismissal of Ms. Strawbridge was harsh, unjust, or unreasonable. This involved assessing the respondent's reasons for termination, the fairness of the process leading to the dismissal, and whether the dismissal was proportionate to the nature of the breach or misconduct alleged. Additionally, the court considered whether the respondent had followed the correct procedural steps and whether there was a valid reason for the dismissal.

Upon reviewing the evidence and arguments presented, the Fair Work Commission concluded that the dismissal was indeed harsh, unjust, or unreasonable. The court found that the respondent failed to provide sufficient evidence to substantiate the reasons for dismissal and that the process was not conducted in a manner that was fair and transparent. Consequently, the application for relief from unfair dismissal was upheld, and the court ordered that Shona Strawbridge be reinstated to her former position and awarded compensation for the period of lost employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established