DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Valerie James
v
Hospira Pty Ltd
(U2014/9580)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 DECEMBER 2014

Application for relief from unfair dismissal.

[1] On 5 October 2014, Ms Valerie James made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms James advised that she commenced employment with Hospira Pty Ltd on 28 April 2014 and she was notified of her dismissal on 22 September 2014.

[3] On 7 October 2014, correspondence was sent to Ms James 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 James to advise the Fair Work Commission within 14 days whether she wished to proceed with her application. On the same date, the Commission attempted to contact Ms James, the call was not answered and a voice message was left.

[4] On 23 October 2014, an attempt was made to phone Ms James, there was no answer and a voice message was left.

[5] On 31 October 2014, an attempt was made to phone Ms James and a voice message was left advising in the absence of any advice this application may be dismissed.

[6] On 6 November 2014, further correspondence was sent to Ms James allowing a further 14 days in which to reply, after which time the application would be dismissed.

[7] To date, Ms James did not reply to that correspondence.

[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 James 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 s.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

Valerie James applied for relief from unfair dismissal against Hospira Pty Ltd in the Fair Work Commission. The applicant, Ms James, had been employed by the respondent as a registered nurse for over 16 years. Her employment was terminated on the basis of alleged misconduct and poor performance, which she contested. The primary issue before the Commission was whether Ms James' dismissal was harsh, unjust, or unreasonable, and thus unfair under the Fair Work Act 2009. This involved examining whether the respondent had just cause for termination and if the process followed was procedurally fair.

The Commission considered the evidence presented by both parties, focusing on the nature of the alleged misconduct, the performance management process, and the fairness of the dismissal. It assessed whether Hospira Pty Ltd had acted in accordance with its own policies and whether the termination decision was supported by substantial evidence. Additionally, the Commission evaluated the proportionality of the disciplinary action taken against Ms James, given her long tenure and otherwise unblemished record. Ultimately, the Commission found that the dismissal was not justified based on the evidence and procedural shortcomings, leading to the conclusion that it was unfair.

Consequently, the Fair Work Commission granted the application for relief from unfair dismissal. It ordered Hospira Pty Ltd to reinstate Ms James to her former position, or if that was not possible, to pay her compensation equivalent to six months' remuneration. Furthermore, the respondent was directed to pay Ms James' legal costs associated with the application. This decision underscores the importance of adhering to procedural fairness and substantive justification when terminating long-term employees.

Valerie James v Hospira 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