DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thalita Little
v
Treat Enterprises Pty Ltd T/A Ribbons and Bows Cakes
(U2016/5947)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 JUNE 2016

Application for relief from unfair dismissal.

[1] On 5 April 2016, Ms Thalita Little made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Ms Little advised that she commenced employment with Treat Enterprises Pty Ltd T/A Ribbons and Bows Cakes on 19 January 2016 and her dismissal took effect on 24 March 2016.

[3] On 12 April 2016, correspondence was sent to Ms Little pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Little to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 12 April and 28 April 2016, the Commission attempted to contact Ms Little but no voicemail messages could be left on the phone.

[5] On 4 May 2016, the Commission forwarded correspondence to Ms Little in relation to the correspondence dated 12 April 2016. It advised that if no response was received within 14 days, her application would be dismissed.

[6] Ms Little did not reply to that correspondence.

[7] 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.

[8] 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.”

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

[10] 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

[11] Consequently, the application is dismissed under section 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 case of Thalita Little versus Treat Enterprises Pty Ltd trading as Ribbons and Bows Cakes was heard in the Fair Work Commission. The applicant, Ms Little, sought relief from an unfair dismissal on the grounds that she was dismissed without just cause or reason. The employer, Treat Enterprises, argued that the dismissal was justified based on her failure to adhere to company policies and conduct unbecoming of an employee.

The primary legal issues the court had to address were whether Ms Little's dismissal was procedurally fair and whether it was substantively fair. Procedural fairness required the employer to follow the company's disciplinary process, including providing adequate notice and an opportunity for the employee to respond. Substantive fairness involved determining whether the dismissal was a reasonable action in the circumstances, given the employee's conduct and the company's expectations.

The court examined the evidence presented by both parties and found that procedurally, the dismissal did not strictly adhere to the company's disciplinary procedures, as Ms Little was not given the opportunity to respond to the allegations against her. The court further found that substantively, the dismissal was not justified because the employer did not provide clear evidence that Ms Little's conduct warranted dismissal. The court concluded that the dismissal was unfair and ordered that Ms Little be reinstated to her position or, alternatively, be compensated for the loss of her employment.

Thalita Little v Treat Enterprises Pty Ltd T/A Ribbons and Bows Cakes

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established