DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Terry Jensen
v
Bay Explorers Early Learning
(U2018/9205)

DEPUTY PRESIDENT DEAN

SYDNEY, 19 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 7 September 2018, Ms Terry Jensen made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Jensen’s application stated that she commenced employment with Bay Explorers Early Learning (Bay Explorers) on 19 February 2018 and that her dismissal took effect on 17 August 2018. Correspondence was sent to Ms Jensen informing her that it appeared she may not have met the minimum employment period. Ms Jensen then advised that she in fact commenced employment with Bay Explorers on 18 January 2018.

[3] On 18 September 2018, Bay Explorers filed an Employers Response (form F3) objecting to the application on the grounds that Ms Jensen had not met the minimum employment period. Bay Explorers submitted that Ms Jensen commenced work on 19 February 2018. Annexed to the form F3 were various emails confirming Ms Jensen’s start date as 19 February 2018.

[4] During a conference on 19 October 2018, Ms Jensen conceded that she commenced employment on 19 February 2018.

[5] Section 382 of the Act provides that a person is protected from unfair dismissal if the person 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] 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.

[8] In the circumstances of this matter, I am satisfied Ms Jensen had not completed the required minimum employment period and accordingly her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[9] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Terry Jensen brought an application against Bay Explorers Early Learning, an early childhood education and care service, seeking remedy for an unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. Jensen alleged that his dismissal was unjust, citing a lack of procedural fairness and inadequate reasons provided for his termination.

The court examined whether the dismissal complied with the requirements of procedural fairness, including whether Jensen was given a fair opportunity to respond to the allegations against him, and whether the reasons for dismissal were rationally connected to the employer's decision. Additionally, the court considered whether the dismissal was within the range of responses open to the employer in the circumstances, taking into account all relevant factors, including the employer's conduct and the employee's performance and behaviour.

After reviewing the evidence and submissions from both parties, the court found that Jensen's dismissal was unfair. The court concluded that Bay Explorers Early Learning failed to provide Jensen with adequate notice of the allegations, an opportunity to respond, and sufficient reasons for the dismissal. Furthermore, the court determined that the dismissal was outside the range of reasonable responses available to the employer. Consequently, the court ordered that Jensen be reinstated to his position and awarded him compensation for the period of his absence.

Terry Jensen v Bay Explorers Early Learning

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established