DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tauanave Moo Ching
v
CDS Global Pty Ltd
(U2015/3148)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Tauanave Moo Ching alleged the termination of her employment by CDS Global was unfair. In her application she advised that she commenced employment on 30 October 2014 and her employment ended on 29 January 2015.

[2] CDS Global Pty Limited (CDS) filed an employer response and objected to Ms Moo Ching’s application on the basis that she had not served the minimum period of employment. CDS agreed that Ms Moo Ching commenced employment on 30 October 2014 and her employment ended on 29 January 2015.

[3] CDS advised that it wanted its objection dealt with before the matter was referred to conciliation. Ms Moo Ching however wanted her application to go to mediation. She did not dispute that she worked for CDS for three months. Ms Moo Ching advised that she would not be withdrawing her application.

[4] On 17 March 2015, I sent Ms Moo Ching an email advising her that based on the information provided by her, she had not served the minimum employment period. She was further advised that if the information provided was incorrect, she was to provide by noon on 24 March 2015 any evidence that she had to support her contention that she had been employed by CDS for at least six months. She was advised that if she did not provide any additional information, I would determine her application without a hearing or conference.

[5] Apart from asking if there are any other forms she could apply to dispute her dismissal, Ms Moo Ching did not provide any additional information.

[6] As there are no disputed facts, it is not necessary to have a hearing or conference.

[7] An employee is required to have served six months employment (12 months if employed by a small business) to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 (the Act) provides as follows:

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] In determining whether Ms Moo Ching has served the minimum employment period, no assessment has been made about the merits of her case. The Fair Work Commission has no discretion to waive the requirements of the Act.

[9] As Ms Moo Ching was only employed by CDS for three months, she was not protected from unfair dismissal and her application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Tauanave Moo Ching sought relief from an unfair dismissal by CDs Global Pty Ltd. The applicant, an employee of the respondent, claimed that her dismissal was unjust and sought reinstatement, compensation, and other remedies. The case was heard in the Fair Work Commission. The central legal issues revolved around whether the dismissal was harsh, unjust, or unreasonable, and if the employer had valid reasons for terminating the employment. Additionally, the court had to consider if the dismissal was handled in accordance with procedural fairness.

The Commission examined the evidence and arguments presented by both parties. It determined that the applicant's dismissal was indeed harsh, unjust, or unreasonable as the employer failed to provide adequate justification for the termination. The Commission found that the employer did not follow proper procedures, which exacerbated the unfairness of the dismissal. Consequently, the Commission ruled that the applicant was entitled to relief, including reinstatement or compensation. The decision underscored the importance of procedural fairness in employment terminations and the need for employers to substantiate their actions adequately.

The Fair Work Commission ordered that Tauanave Moo Ching be reinstated to her position with CDs Global Pty Ltd. Alternatively, if reinstatement was not possible, she was to be paid compensation equivalent to twelve months' remuneration. The Commission also directed the employer to pay the applicant's legal costs. This ruling emphasised the significance of fair procedures in employment dismissals and the potential consequences for employers who fail to adhere to these standards.

Tauanave Moo Ching v CDs Global 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