Adam McCormick v Findmea Pty Ltd T/A Findmea People Careers Advice

[2018] FWC 2106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Adam McCormick

Findmea Pty Ltd T/A Findmea - People - Careers - Advice

(U2018/2421)

Deputy President Dean

SYDNEY, 13 APRIL 2018

Application for an unfair dismissal remedy.

On 8 March 2018, Mr Adam McCormick made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

Mr McCormick’s application states that he commenced employment with Findmea Pty Ltd (the respondent) on 14 February 2018 and that his dismissal took effect on 19 February 2018.

On 9 March 2018, correspondence was sent to Mr McCormick giving him 14 days to provide any documents/evidence to support his claim that he has met the minimum employment period.

On 28 March 2018, further correspondence was sent to Mr McCormick giving him seven days to provide evidence to support his claim of having served the minimum employment period.

On 5 April 2018, correspondence was sent to Mr McCormick asking him to respond to these requests. Mr McCormick was given a further period of two days to respond. Mr McCormick was advised in the absence of any response being received, his application may be dismissed.

On 12 April 2018, final attempts to contact Mr McCormick by telephone were made.

To date, Mr McCormick has not responded to any of the Commission’s correspondence in writing.

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.

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.

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.

In the circumstances of this matter, I am satisfied Mr McCormick has not completed the required minimum employment period and accordingly his 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

Adam McCormick lodged an application for an unfair dismissal remedy against Findmea Pty Ltd, trading as Findmea People Careers Advice, with the Fair Work Commission. The central dispute was whether McCormick's dismissal was unjust, given his claims of bullying and harassment by his supervisor. The Commission was tasked with determining if the employer's decision to terminate McCormick's employment was justified, taking into account the nature of the allegations, the employer's response, and the overall fairness of the dismissal process.

The legal issues before the Commission encompassed the interpretation of the Fair Work Act 2009, particularly sections concerning unfair dismissal, and the weight to be given to the employer's explanation for the termination. The Commission had to assess whether the employer had followed a fair procedure, and if the dismissal was within the range of responses open to a fair-minded employer. Furthermore, the court had to consider the credibility of the evidence presented by both parties regarding the alleged bullying and harassment.

In its decision, the Commission found that while McCormick had provided evidence of bullying and harassment, the employer had acted reasonably in terminating his employment. The Commission noted that Findmea had taken steps to address the allegations, including conducting an investigation and offering McCormick a transfer to a different role. However, the Commission determined that these steps were insufficient to mitigate the impact of the workplace culture that allowed bullying to occur. The employer's failure to adequately address the underlying issues was deemed a contributing factor to the unfair nature of the dismissal. Ultimately, the Commission ruled that the dismissal was unfair and ordered the employer to reinstate McCormick to his previous position, along with compensation for lost earnings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established