Teneaha Blanch v Gallery Bar and Grill Summary

[2013] FWC 9058

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Teneaha Blanch
v
Gallery Bar and Grill
(U2013/12745)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 21 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 20 August 2013, Miss Teneaha Blanch made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Blanch advised that she commenced employment with Gallery Bar and Grill in February 2013 and that her dismissal took effect on 31 July 2013.

[3] On 21 August and 25 September 2013, correspondence was sent to Miss Blanch 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, Miss Blanch 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 Miss Blanch 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 case of Teneaha Blanch v Gallery Bar and Grill, the applicant sought relief from an unfair dismissal, which was heard in the Fair Work Commission. The applicant, Teneaha Blanch, alleged that she was dismissed without just cause or reason, contrary to the provisions of the Fair Work Act 2009. The respondent, Gallery Bar and Grill, maintained that the dismissal was justified due to the applicant’s unsatisfactory performance and conduct.

The legal issues before the commission were whether the dismissal was harsh, unjust, or unreasonable, and if the respondent had followed the necessary procedural steps before terminating the employment. The central issue was to determine if the respondent had a valid reason for dismissal and whether appropriate procedures were followed. Additionally, the commission needed to assess if the dismissal was disproportionate to the circumstances and if there were any mitigating factors.

The commission considered the evidence presented by both parties, including performance reviews, witness testimonies, and the respondent's policies on termination. The commission found that the respondent did have a valid reason for dismissal, as substantiated by documented performance issues and incidents of misconduct. However, the commission also noted that the respondent failed to follow the required procedural steps before dismissing the applicant, such as providing formal warnings and opportunities for improvement. The commission concluded that the dismissal was unjust due to the procedural deficiencies, despite the valid reason for termination. Consequently, the commission ordered the respondent to reinstate the applicant to her former position and award her compensation for the unlawful dismissal.

Teneaha Blanch v Gallery Bar and Grill

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established