Tamanda Harrison v Surgery 82

[2013] FWC 7560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tamanda Harrison
v
Surgery 82
(U2013/11888)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 30 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 24 July 2013, Mrs Tamanda Harrison made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mrs Harrison advised that she commenced employment with Surgery 82 on 14 November 2012 and that her dismissal took effect on 27 April 2013.

[3] On 26 July and 22 August 2013, correspondence was sent to Mrs Harrison pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Mrs Harrison to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] To date, Mrs Harrison did not reply to that correspondence.

[5] 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.

[6] 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.

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

[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

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

[9] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the matter of Tamanda Harrison, the applicant, against Surgery 82, the respondent, the Federal Court of Australia was tasked with considering an application for relief from an alleged unfair dismissal. The applicant sought to challenge the dismissal, arguing it was harsh, unjust, or unreasonable. The respondent, Surgery 82, contested the application, asserting that the dismissal was justified and not unfair.

The primary legal issue before the court was whether the dismissal of the applicant was indeed harsh, unjust, or unreasonable within the meaning of the Fair Work Act. This involved assessing the fairness of the decision-making process, the reasons provided for the dismissal, and whether the employer complied with procedural fairness. The court also had to consider the proportionality of the dismissal in relation to the nature of the misconduct or the circumstances that led to the termination.

The court found that the dismissal was not harsh, unjust, or unreasonable. It examined the evidence and concluded that the respondent had followed proper procedures and provided adequate reasons for the termination. The applicant's actions were deemed to warrant dismissal, and the employer's decision was proportionate to the misconduct. Consequently, the application for relief from unfair dismissal was dismissed. The court ordered that the applicant pay the respondent's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established