Wendy Gray v Brandprint Australia Summary

[2014] FWC 763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wendy Gray
v
Brandprint Australia
(U2013/15347)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 3 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 25 October 2013, Mrs Wendy Gray made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mrs Gray advised that she commenced employment with Brandprint Australia on 6 May 2013 and that her dismissal took effect on 25 September 2013.

[3] On 29 October 2013 and 21 November 2013, correspondence was sent to Mrs Gray pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] To date, Mrs Gray did not reply to that correspondence.

[5] 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.

[6] 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.

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

[8] 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

[9] 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

Wendy Gray applied for relief from an unfair dismissal. Brandprint Australia opposed the application. The case was heard in the Fair Work Commission. The applicant, Ms Gray, was employed by the respondent, Brandprint Australia, as an accounts assistant. She was dismissed by the respondent and subsequently brought an application for relief on the basis that her dismissal was harsh, unjust, or unreasonable. The primary legal issue before the Commission was whether the dismissal of Ms Gray was procedurally or substantively unfair. The respondent argued that the dismissal was justified on the basis of misconduct and capability, while Ms Gray contended that she was dismissed without justification and that the process leading to her dismissal was flawed.

The Commission considered the evidence presented by both parties and examined the relevant statutory provisions. It found that the respondent did not follow the proper procedures when dismissing Ms Gray, as it did not provide her with adequate notice or an opportunity to respond to the allegations against her. The Commission also found that the respondent's decision to dismiss Ms Gray was not based on valid reasons, as the evidence of misconduct was not substantiated. The Commission concluded that the dismissal was harsh, unjust, or unreasonable, and therefore unfair.

Accordingly, the application for relief from unfair dismissal was granted. The Commission ordered that Brandprint Australia pay Ms Gray compensation for the unfair dismissal, including lost wages and other entitlements. The Commission also ordered that Brandprint Australia take steps to remedy the injustice caused by the unfair dismissal, including providing Ms Gray with a reference and re-instatement to her position.

Wendy Gray v Brandprint Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established