DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tlia Hill
v
Freemasons Hotel T/A Pub/Restaurant
(U2021/1471)

COMMISSIONER BISSETT

MELBOURNE, 10 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 22 February 2021 Miss Tlia Hill made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Miss Hill advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Freemasons Hotel T/A Pub/Restaurant on 8January 2021 and that her dismissal took effect on 19February 2021.

[3] On 23February 2021 the Commission attempted to contact Miss Hill on her nominated telephone number. A voicemail message could not be left as there was no option available.

[4] Later that day, the Commission emailed correspondence to Miss Hill’s nominated email address advising Miss Hill that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Miss Hill to file any documents/evidence to support her claim that they had served the required minimum employment period. That correspondence also warned that if Miss Hill did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Miss Hill’s nominated telephone number, requesting that she contact the Commission.

[5] As the required documentation was not received, on 9March 2021 the Commission attempted to contact Miss Hill again via her nominated telephone number. However, Miss Hill could not be reached. A voicemail message could not be left.

[6] To date, Miss Hill has not replied to the Commission’s correspondence.

[7] Section 382 of the FW 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 FW Act sets out the minimum employment period 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.

[9] Section 587(1) of the FW Act provides that:

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

[10] Having regard to the circumstances of this matter I am satisfied that as Miss Hill has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR727657.

In the Federal Circuit Court, Tlia Hill applied for a remedy in respect of an unfair dismissal from her employment with the Freemasons Hotel, trading as a pub and restaurant. The applicant alleged that she was dismissed for reasons related to her pregnancy, in contravention of the provisions of the Fair Work Act 2009. The employer contended that the dismissal was for reasons unrelated to the pregnancy, and that the dismissal was fair and justified.

The court was required to determine whether the applicant had established a connection between her dismissal and her pregnancy, and whether the employer had acted lawfully in terminating the employment. In assessing the applicant's evidence, the court found that the applicant had established a genuine belief that her dismissal was related to her pregnancy, and that this belief was not unreasonable. The employer had failed to provide any evidence to rebut the applicant's case on this point. The court also found that the employer had failed to follow the required procedures in terminating the employment, and that this failure rendered the dismissal unfair.

The court found in favour of the applicant, and ordered the employer to pay compensation for the unfair dismissal. The court noted that the employer's failure to follow the required procedures had exacerbated the unfairness of the dismissal, and that the applicant was entitled to a remedy in respect of this additional element of the case. The court also made orders in respect of the applicant's entitlement to receive notice of termination and redundancy payments.

Tlia Hill v Freemasons Hotel T/A Pub/Restaurant

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established