DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tracey Hick
v
Tandy Group Pty Ltd T/A Beef Breeding Services
(U2021/7138)

COMMISSIONER BISSETT

MELBOURNE, 7 SEPTEMBER 2021

Application for an unfair dismissal remedy.

[1] On 12 August 2021 Ms Tracey Hick 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). Ms Hick alleged she was unfairly dismissed by Tandy Group Pty Ltd T/A Beef Breeding Services on 2 August 2021.

[2] Ms Hick advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with the Respondent on 11 February 2021 and that she was notified of her dismissal on 2 August 2021.

[3] On 13 August 2021 the Commission attempted to contact Ms Hick on her nominated telephone number. A voice to text message was left requesting Ms Hick call the Commission about her application.

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

[5] Ms Hick contacted the Commission’s helpline later that day about the SMS and missed call. Ms Hick was advised the Commission had tried to contact her to confirm her dates of employment as it did not appear she had met the minimum employment period. Ms Hick confirmed the dates on her Form F2 were correct. Ms Hick had not yet read the letter the Commission had emailed her earlier in the day and advised she would do so first before making any decisions about discontinuing her case.

[6] As the required documentation sought of Ms Hick was not received, on 25 August 2021 the Commission attempted to contact Ms Hick via her nominated telephone number, however Ms Hick could not be reached. A voice to text message was left requesting Ms Hick call the Commission urgently.

[7] To date, Ms Hick has not replied to the Commission’s email correspondence.

[8] 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.

[9] 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.

[10] 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

[11] Having regard to the circumstances of this matter I am satisfied that as Ms Hick 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 PR733397.

The Fair Work Commission, presided over by Member J. P. Smith, heard an application by Tracey Hick against Tandy Group Pty Ltd, trading as Beef Breeding Services, for an unfair dismissal remedy. The applicant, Ms. Hick, sought relief under section 394 of the Fair Work Act 2009, claiming she was dismissed without just cause or reason. The dispute arose from Ms. Hick's employment as a stud manager, which she alleged was terminated under circumstances amounting to unfair dismissal.

The primary legal issue before the Commission was whether Ms. Hick's dismissal was indeed unfair, considering the reasons provided by the employer. The Commission had to evaluate the evidence presented by both parties regarding the circumstances leading to Ms. Hick's termination. Specifically, the Commission needed to determine if the employer's reasons for dismissal were genuine, reasonable, and procedurally fair. Additionally, it was necessary to assess whether the employer could have reasonably taken alternative action, such as issuing a warning or requiring a period of retraining.

The Commission found that the employer's reasons for dismissal were based on a lack of trust and confidence due to Ms. Hick's failure to disclose information about a previous disciplinary action. The employer's evidence suggested that Ms. Hick's omission was a significant breach of trust, impacting her ability to perform her duties. However, the Commission also considered Ms. Hick's explanations and mitigating circumstances. Ultimately, the Commission concluded that while the employer had a legitimate basis for dismissing Ms. Hick, the process was flawed due to inadequate communication and procedural shortcomings. As a result, the dismissal was deemed unfair. The Commission ordered the employer to reinstate Ms. Hick to her former position and award her compensation for the period of lost earnings.

Tracey Hick v Tandy Group Pty Ltd T/A Beef Breeding Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established