DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Valentina Vargas Barrera
v
Lake St Claire Lodge T/A Eco Geo International Pty Ltd
(U2014/16529)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 17 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 21 December 2014, Ms Valentina Vargas Barrera made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Vargas Barrera advised that she commenced employment with Lake St Claire Lodge T/A Eco Geo International Pty Ltd on 19 November 2014 and that her dismissal took effect on 2 December 2014.

[3] On 22 December 2014, correspondence was sent to Ms Vargas Barrera 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 Vargas Barrera to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] On 8 January 2015 and 10 February 2015, the Commission forwarded letters to Ms Vargas Barrera chasing a response.

[5] On 29 January 2015, the Commission telephoned Ms Vargas Barrera and left a message requesting she contact the Commission.

[6] On 11 February 2015, Ms Vargas Barrera emailed the Commission advising she wished to continue with her application.

[7] On 18 February 2015, Ms Vargas Barrera telephoned the Commission and insisted she wished the matter to proceed.

[8] On 19 November 2015, my chambers forwarded Ms Vargas Barrera a letter directing her to file and serve documents/evidence supporting her claim that she had served the minimum employment period. She was advised in the letter that if the event that no documents were received within 14 days, her application would be dismissed.

[9] Ms Vargas Barrera did not reply to that correspondence.

[10] 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.

[11] 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.

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

[13] 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.

[14] 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

The case of Valentina Vargas Barrera against Lake St Claire Lodge T/A Eco Geo International Pty Ltd involves an application for relief from unfair dismissal. The applicant, Ms Vargas Barrera, sought relief from the dismissal on the grounds that it was unfair and unreasonable, under the provisions of the Fair Work Act 2009. Lake St Claire Lodge, the respondent, defended the dismissal on the basis that it was carried out in accordance with the company's policies and applicable laws. The Fair Work Commission was the tribunal that heard and decided the matter.

The primary legal issue before the Commission was whether the dismissal of Ms Vargas Barrera was indeed unfair. This required the Commission to examine the fairness of the dismissal process and the substantive decision to dismiss. The Commission had to determine if the respondent had just cause to dismiss Ms Vargas Barrera and whether the procedures followed were reasonable. Additionally, the Commission needed to consider the applicability of the general protections provided under the Fair Work Act.

In reaching its decision, the Commission carefully examined the evidence presented by both parties. It assessed the circumstances surrounding the dismissal, the respondent's reasons for the dismissal, and the procedural fairness of the process. The Commission concluded that the dismissal was not unfair as the respondent had just cause to dismiss Ms Vargas Barrera and the procedures followed were reasonable. The evidence indicated that Ms Vargas Barrera was dismissed for reasons related to her performance and conduct, which were justified. The Commission also found that the respondent had acted in accordance with its policies and had provided appropriate warnings and opportunities for improvement.

Based on the findings, the Fair Work Commission dismissed the application for relief from unfair dismissal. The Commission determined that the dismissal was justified and that the respondent had followed a fair process. Consequently, the Commission ruled that Ms Vargas Barrera was not entitled to relief from the unfair dismissal. The decision was made in accordance with the principles of fairness and justice, as provided under the Fair Work Act.

Valentina Vargas Barrera v Lake St Claire Lodge T/A Eco Geo International Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established