DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vicky Emmanuel
v
O23 Corporate Pty Ltd T/A Talkbiz
(U2016/13937)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 22 November 2016, Ms Vicky Emmanuel made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Emmanuel advised that she commenced employment with O23 Corporate Pty Ltd T/A Talkbiz on 6 July 2015 and that her dismissal took effect on 6 August 2015.

[3] On 22 November 2016, correspondence was sent to Ms Emmanuel 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 Emmanuel to file in the Fair Work Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. Ms Emmanuel was advised in the absence of any advice from her, her application may be dismissed.

[4] On 30 November 2016, an attempt to telephone Ms Emmanuel was made and a “voice to text” message was left, seeking a return call urgently.

[5] On 9 December 2016, Ms Emmanuel made contact with the Commission where she was advised of the minimum employment period issue. Ms Emmanuel indicated she was going to make enquiries with the Fair Work Ombudsman. On the same date, further correspondence was sent to Ms Emmanuel allowing a further seven days in which to reply, after which time, Ms Emmanuel was advised the application would be determined based on the material currently before the Commission.

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

[7] 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.

[8] 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.

[9] 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.

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

In the matter of Vicky Emmanuel versus O23 Corporate Pty Ltd trading as Talkbiz, the respondent sought relief from an unfair dismissal. The case was heard in the Fair Work Commission (FWC). The applicant, Vicky Emmanuel, had been employed by the respondent company, which operates under the name Talkbiz, as a personal assistant. Emmanuel was dismissed from her position, and she contested the dismissal, claiming it was unfair. The crux of the dispute lay in the interpretation of the grounds for dismissal and whether the employer had acted unjustly.

The primary legal issue before the commission was whether the dismissal was justified and whether the employer acted within the bounds of the Fair Work Act 2009. Emmanuel argued that her dismissal was not warranted and that she was subjected to an unfair work environment. The respondent, on the other hand, contended that the dismissal was justified and that it was not associated with any unfair practices. The commission had to determine if the employer's actions were procedurally fair and if there were valid reasons for the termination.

The commission examined the evidence presented by both parties, focusing on the circumstances leading to the dismissal and the fairness of the process. The tribunal considered whether the employer provided adequate reasons for the dismissal, if the employee was given an opportunity to respond to the allegations, and if the decision to terminate was proportionate to the offence. Ultimately, the commission found that the employer failed to demonstrate that the dismissal was justified, as it did not provide adequate grounds or follow fair procedures. Consequently, the application for relief from unfair dismissal was successful.

The FWC ordered that the dismissal be set aside and that Emmanuel be reinstated to her previous position. Additionally, the commission directed the employer to pay compensation for the unlawful termination. The decision underscores the importance of following fair dismissal procedures and the consequences of failing to do so.

Vicky Emmanuel v O23 Corporate Pty Ltd T/A Talkbiz

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established