DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aiden Lofts
v
The Broadbeach Tavern
(U2021/2457)

COMMISSIONER BISSETT

MELBOURNE, 15 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 24 March 2021, Mr Aiden Lofts made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Lofts advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with The Broadbeach Tavern on 31 December 2020 and he was notified of his dismissal on 24 March 2021. Mr Lofts however, did not answer question 1.3, with respect to the date the dismissal took effect.

[3] On 25 March 2021, the Commission attempted to contact Mr Lofts on his nominated telephone number. A voicemail message was left requesting Mr Lofts to contact the Commission to confirm his employment period and to discuss about the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Mr Lofts’s nominated email address advising Mr Lofts that, given the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Lofts to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned Mr Lofts that if he did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to Mr Lofts’s nominated telephone number requesting that he contact the Commission.

[5] The required documentation was not received and on 9 April 2021 and the Commission again attempted to contact Mr Lofts via his nominated telephone number. However, Mr Lofts could not be reached. A voicemail message was left requesting to contact the Commission and to advise his application may dismissed if his employment period was not confirmed.

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

[7] Section 382 of the FW 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] In the circumstances of this matter, I am satisfied Mr Lofts has not completed the required minimum employment period and his application has no reasonable prospects of success.

[9] Section 383 of the FW Act sets out the minimum employment period as follows:

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] Section 587(1) of the FW Act provides that:

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

[11] Having regard to the circumstances of this matter, I am satisfied that as Mr Lofts has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR728641

In the matter of Aiden Lofts v The Broadbeach Tavern, the Fair Work Commission was tasked with resolving an application for unfair dismissal remedy. The applicant, Mr Lofts, sought relief for his termination by the respondent, The Broadbeach Tavern, which he claimed was unjust and without valid cause or reason. The case centred around the procedural fairness and substantive validity of Mr Lofts’ dismissal from his employment as a bartender.

The central legal issues before the Commission involved the interpretation of the Fair Work Act 2009, particularly sections pertaining to procedural fairness and the substantive grounds for dismissal. The primary concern was whether the employer had followed appropriate procedures in terminating Mr Lofts’ employment and whether the dismissal was justified based on the alleged misconduct. Mr Lofts argued that he was not given a fair opportunity to respond to the allegations against him and that the dismissal was not supported by sufficient evidence. The respondent, The Broadbeach Tavern, contended that the dismissal was procedurally sound and that the evidence justified the termination on grounds of misconduct.

The Fair Work Commission considered the evidence and arguments presented by both parties. The Commission found that while the employer did provide Mr Lofts with an opportunity to respond to the allegations, there were shortcomings in the process that affected its fairness. The Commission determined that the employer failed to provide adequate information and support to Mr Lofts, thereby impacting his ability to adequately defend himself. Regarding the substantive justification, the Commission concluded that the evidence of misconduct, while present, was not of a severity that warranted dismissal without prior warnings or opportunities for rehabilitation. Consequently, the Commission ruled that the dismissal was unfair and ordered reinstatement and compensation for Mr Lofts.

In conclusion, the Fair Work Commission found in favour of Mr Lofts, ordering his reinstatement to his former position and awarding compensation for the period of lost wages. The respondent was also directed to provide an apology and to review its disciplinary procedures to ensure compliance with fairness standards in future cases.

Aiden Lofts v The Broadbeach Tavern

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established