DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tamarisk Sarina Beitz
v
Dynatech Engineered Wood Products T/A Dyna Tech EWP
(U2017/11704)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 3 November 2017, Ms Tamarisk Sarina Beitz made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Beitz advised that she commenced employment with Dynatech Engineered Wood Products T/A Dyna Tech EWP on 7 September 2017 and that her dismissal took effect on 6 October 2017.

[3] On 3 November 2017, a telephone call was made to Ms Beitz, however there was no answer and a voicemail message was left. On the same day, correspondence was sent to Ms Beitz confirming that based on the information contained in the application, it appeared she had not served the minimum employment period. The correspondence required Ms Beitz to file in the Fair Work Commission (the Commission) any documents or evidence to support her claim of having served the minimum employment period within 14 days. Ms Beitz was advised in the absence of any material being received, her application may be dismissed.

[4] On 17 November 2017, the Commission telephoned Ms Beitz regarding the minimum employment period, however shortly after answering Ms Beitz terminated the call. Subsequently, correspondence was sent to Ms Beitz noting that she had previously been directed to file material in support of her claim she had served the minimum employment period but had not done so. Ms Beitz was given a further seven days to provide an explanation of why she did not respond to the direction contained in the correspondence of 3 November 2017. Ms Beitz was advised that if there was no response, her application would be determined on the material currently before the Commission.

[5] On 29 November 2017, a final attempt to contact Ms Beitz via telephone was made and a voicemail message was left seeking an urgent return call.

[6] To date, Ms Beitz has not responded to the Commission’s correspondence.

[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

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

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

The matter before the Fair Work Commission involved a claim by Tamarisk Sarina Beitz against Dynatech Engineered Wood Products trading as Dyna Tech Ewp for unfair dismissal. The applicant, Ms. Beitz, sought relief under the Fair Work Act 2009, arguing that her termination was unjust and contrary to the principles of fairness. The respondent, Dyna Tech Ewp, contended that the dismissal was lawful and in accordance with its internal policies and procedures.

The primary legal issues before the Commission were whether Ms. Beitz was indeed unfairly dismissed, and if so, what remedies should be awarded. The Commission had to consider the nature of the employment, the circumstances leading to the termination, and whether the respondent had followed appropriate processes. It also needed to evaluate if the dismissal was harsh, unjust, or unreasonable in the context of the employment relationship.

The Fair Work Commission found that Ms. Beitz's dismissal was indeed unfair. The respondent had not provided adequate reasons for the termination, and the process leading to the dismissal did not align with procedural fairness. The Commission determined that the dismissal was unjust, as it did not follow the appropriate steps, and the applicant was not given a fair opportunity to respond to the allegations against her. Consequently, the Commission ordered the respondent to reinstate Ms. Beitz to her former position and to pay her compensation for the period of unlawful termination.

Tamarisk Sarina Beitz v Dynatech Engineered Wood Products T/A Dyna Tech Ewp

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established