Tara Cornelissen v Shoes online ent T/A Shoes online ent

[2014] FWC 1737

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tara Cornelissen
v
Shoes online ent T/A Shoes online ent
(U2014/220)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 MARCH 2014

Application for relief from unfair dismissal.

[1] On 28 January 2014, Ms Tara Cornelissen made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Cornelissen advised that she commenced employment with Shoes online ent T/A Shoes online ent on 7 October 2013 and that her dismissal took effect on 28 January 2014.

[3] On 31 January 2014 and 18 February 2014, correspondence was sent to Ms Cornelissen pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] To date, Ms Cornelissen 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 Ms Cornelissen 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

The applicant, Tara Cornelissen, sought relief from her dismissal from Shoes online ent T/A Shoes online ent. Cornelissen argued that her dismissal was unfair due to various reasons, including procedural unfairness and the absence of valid reasons for her termination. The matter was heard in the Fair Work Commission, which has jurisdiction over employment disputes in Australia. The legal issues at the core of the case involved the fairness of the dismissal process and whether the employer had just cause to terminate Cornelissen's employment.

The Commission was required to determine if the dismissal was procedurally fair and whether the employer had valid reasons to terminate Cornelissen's employment. It also needed to consider whether Cornelissen's actions warranted such a severe penalty. The primary focus was on whether the employer complied with the necessary procedures and whether the reasons for dismissal were justified. The Commission had to balance the employer's right to manage its business with the employee's right to procedural fairness.

In delivering its decision, the Commission found that there were procedural deficiencies in the dismissal process, which contributed to the unfairness of the dismissal. It was noted that the employer did not provide adequate opportunity for Cornelissen to respond to the allegations against her, nor did they adequately consider her response when it was eventually provided. The Commission also found that the reasons provided for the dismissal were not substantiated and did not justify such a severe penalty. Consequently, the Commission ruled that the dismissal was unfair. As a result, the Commission ordered that Cornelissen be reinstated to her position and awarded her compensation for the period of her unjustified dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established