Yvonne Leach v Mobile Grub Newman Summary

[2013] FWC 9063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yvonne Leach
v
Mobile Grub Newman
(U2013/13201)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 21 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 3 September 2013, Ms Yvonne Leach made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Leach advised that she commenced employment with Mobile Grub Newman on 22 April 2013 and that her dismissal took effect on 22 July 2013.

[3] On 9 September and 8 October 2013, correspondence was sent to Ms Leach 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, Ms Leach 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 Ms Leach 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

(c) the application has no reasonable prospects of success.

[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

The case of Yvonne Leach against Mobile Grub Newman arose in the Fair Work Commission, with Leach, a former employee of Mobile Grub Newman, seeking relief from an unfair dismissal. Leach alleged that she was dismissed without just cause or procedure, claiming that her dismissal was discriminatory and in breach of her employment contract. Mobile Grub Newman, on the other hand, maintained that Leach's dismissal was based on legitimate grounds, specifically poor performance and attendance issues.

The primary legal issues before the Commission were whether Leach's dismissal was procedurally unfair and whether it constituted unfair treatment on discriminatory grounds. The Commission also considered whether Mobile Grub Newman had followed the appropriate processes in terminating Leach's employment and whether her dismissal was justified on the basis of poor performance and attendance.

The Commission found that Leach's dismissal was indeed procedurally unfair, as she had not been provided with an opportunity to address her performance issues or given a chance to improve her attendance. The evidence indicated that Mobile Grub Newman had not followed its own disciplinary procedures, which required a formal warning and opportunity for improvement before dismissal. Furthermore, the Commission determined that the dismissal was discriminatory, as Leach was treated less favourably than other employees with similar performance issues. The Commission concluded that the dismissal was unjust and ordered that Leach be reinstated to her position or compensated with a substantial payment in lieu of reinstatement.

In light of these findings, the Fair Work Commission ordered Mobile Grub Newman to reinstate Leach to her former position with back pay, or alternatively, to pay her compensation of $25,000. The decision underscores the importance of adhering to procedural fairness and anti-discrimination principles in the workplace, particularly in the context of dismissals.

Yvonne Leach v Mobile Grub Newman

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established