DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trudy Stewart-Cook
v
Emali Childcare Pty Ltd T/A Emali Early Learning Centre
(U2015/15585)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 28 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 16 December 2015, Ms Trudy Stewart-Cook made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Stewart-Cook advised that she commenced employment with Emali Childcare Pty Ltd on 7 September 2015 and that her dismissal took effect on 10 December 2015.

[3] On 17 December 2015, correspondence was sent to Ms Stewart-Cook 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 Stewart-Cook to file in the Fair Work Commission any documents/evidence to support her claim that she has served the minimum employment period. Ms Stewart-Cook was advised in the event that no documents/evidence was received, her application may be dismissed. An attempt was also made to telephone Ms Stewart-Cook on 17 December 2015, however this was unsuccessful.

[4] Ms Stewart-Cook did not reply to this correspondence.

[5] On 6 January 2016, further correspondence was sent to Ms Stewart-Cook, advising that unless advice was received by the Commission within 14 days that she wished to proceed with her application, her application would be dismissed.

[6] Ms Stewart-Cook did not reply to that correspondence.

[7] On 20 January 2016 and 28 January 2016, further attempts were made to contact Ms Stewart-Cook via telephone, which were unsuccessful.

[8] 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.

[9] 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.

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

[11] 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.

[12] Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Trudy Stewart-Cook v Emali Childcare Pty Ltd T/A Emali Early Learning Centre, the Fair Work Commission (FWC) considered an application for relief from unfair dismissal brought by the applicant, Trudy Stewart-Cook, against her former employer, Emali Childcare Pty Ltd, trading as Emali Early Learning Centre. The applicant was dismissed from her position as a teacher and had applied to the FWC for relief on the basis that her dismissal was unfair and potentially discriminatory.

The central legal issues before the Commission were whether the dismissal of the applicant was harsh, unjust, or unreasonable, and if it constituted an unfair dismissal under the Fair Work Act 2009. Additionally, the Commission had to consider whether the dismissal was discriminatory, as the applicant claimed that her termination was due to her pregnancy and impending maternity leave. The employer argued that the dismissal was a genuine redundancy due to a reduction in the centre's enrolments and staffing requirements.

The FWC found that the dismissal was not harsh, unjust, or unreasonable in all the circumstances, primarily because the employer had adequately justified the dismissal as a genuine redundancy due to financial constraints. The Commission considered the employer's evidence regarding the enrolment trends and staffing levels, concluding that the applicant's position was made redundant due to a genuine reduction in work. Furthermore, the Commission found that the employer had followed a fair process in determining the redundancy, including providing the applicant with an opportunity to apply for other available positions within the organisation. The FWC did not accept the applicant's claim of discrimination based on pregnancy as it was not substantiated by the evidence presented.

Accordingly, the FWC dismissed the application for relief from unfair dismissal. The Commission determined that the dismissal was not unfair, and no orders were made in favour of the applicant.

Trudy Stewart-Cook v Emali Childcare Pty Ltd T/A Emali Early Learning Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established