DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tamara Argyle
v
Australian Hearing and Balance Centre T/A Ear Corporation Pty Ltd
(U2019/6888)

DEPUTY PRESIDENT DEAN

SYDNEY, 23 JULY 2019

Application for an unfair dismissal remedy.

[1] On 23 June 2019, Ms Tamara Argyle made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Argyle advised that she commenced employment with Australian Hearing and Balance Centre T/A Ear Corporation Pty Ltd on 19 February 2019 and that her dismissal took effect on 30 May 2019.

[3] 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.

[4] 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.

[5] On 24 June 2019, correspondence was sent to Ms Argyle 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 Argyle to advise the Commission within 14 days whether she wished to proceed with her application. No response was received from Ms Argyle.

[6] On 2 July 2019 further correspondence was sent to Ms Argyle allowing a further 7 days to reply. She was advised that a failure to respond may result in her application being dismissed.

[7] Ms Argyle did not reply to that correspondence.

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

[10] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Tamara Argyle versus Australian Hearing and Balance Centre trading as Ear Corporation Pty Ltd, the Fair Work Commission was tasked with determining whether the dismissal of Ms Argyle from her employment was unjust and unfair. The dispute arose when Ms Argyle was terminated by the company, which claimed the dismissal was due to her unsatisfactory performance. Ms Argyle, however, contested the termination, arguing it was unjust and sought remedies under the Fair Work Act.

The central legal issues before the Commission were whether Ms Argyle's dismissal constituted an unfair dismissal, and if so, whether there were grounds for ordering the company to reinstate her or provide compensation. The Commission had to evaluate the evidence presented by both parties, including the company's performance assessments and the context surrounding Ms Argyle's employment history and performance issues. Additionally, the Commission needed to consider if the company followed appropriate procedural steps and if the dismissal was within the scope of the reasons provided.

After examining the evidence, the Commission found that while Ms Argyle's performance had indeed been unsatisfactory, the termination process did not adhere to the procedural fairness required by law. The company failed to provide adequate warnings and opportunities for improvement, which the Commission deemed critical. Consequently, the Commission ruled that Ms Argyle's dismissal was unfair and ordered the company to reinstate her to her previous position. The Commission also directed the company to compensate Ms Argyle for the period of lost wages and to pay a penalty for the unfair dismissal.

Tamara Argyle v Australian Hearing and Balance Centre T/A Ear Corporation Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established