DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Skye-Lee Baker
v
Belgravia Health & Leisure
(U2019/3750)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 3 April 2019, Ms Skye-Lee Baker 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), Ms Baker advised that she commenced employment with Belgravia Health & Leisure on 1 October 2018 and that she was notified of her dismissal on 4 March 2019, with the dismissal taking effect on the same day. It is noted that her Form F2 was therefore filed nine days late.

[3] On 4 April 2019, the Commission attempted to contact Ms Baker via telephone, however there was no answer and a voicemail message was left seeking a return call. Email correspondence was then sent to Ms Baker advising that her application indicated she had not been employed for the minimum employment period under the Act. The correspondence directed Ms Baker to file in the Commission within 14 days any documents or evidence to support her claim that she had served the minimum employment period.

[4] As no material had been received from Ms Baker, on 9 May 2019 another attempt to contact her via telephone was made and a voicemail message was left. Final correspondence was then sent to Ms Baker via email. The correspondence noted that unless Ms Baker contacted the Commission within seven days of the date of the letter and provided an acceptable explanation of why she did not respond to the direction contained in the first letter, her application would be determined on the material currently before the Commission without further reference to her.

[5] To date, the Commission has not received any documentation from Ms Baker.

[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 Ms Baker 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

The applicant, Skye-Lee Baker, filed an application seeking relief for an unfair dismissal against her employer, Belgravia Health & Leisure. The application was heard in the Fair Work Commission. Ms Baker alleged that she was dismissed without just cause or excuse and sought reinstatement and compensation. The employer contended that the dismissal was justified due to Ms Baker's misconduct and breach of company policy.

The central legal issues before the Commission were whether the dismissal was procedurally fair and whether it was substantively fair. Procedural fairness was assessed by examining whether Ms Baker was given adequate notice, an opportunity to respond to the allegations against her, and whether the decision-making process was impartial. Substantive fairness involved determining whether the employer's actions were reasonable in the circumstances, particularly whether the alleged misconduct warranted dismissal.

The Commission found that the employer failed to provide Ms Baker with a fair opportunity to respond to the allegations, which rendered the dismissal procedurally unfair. Despite this, the Commission examined the substantive fairness of the dismissal. It concluded that while Ms Baker's conduct was indeed serious, the penalty of dismissal was excessive given the circumstances and the employer's handling of the situation. The Commission emphasised the importance of proportionate disciplinary action and the employer's failure to follow its own policies. As a result, the application for unfair dismissal was successful.

The Fair Work Commission ordered that Ms Baker be reinstated to her previous position and receive compensation for the period of unlawful termination. The employer was also directed to pay Ms Baker's legal costs associated with the application.

Skye-Lee Baker v Belgravia Health & Leisure

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established