DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexander Brown
v
Caloundra Crash Repairs
(U2017/517)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] On 17 January 2017, Mr Alexander Brown made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Brown advised that he commenced employment with Caloundra Crash Repairs on 5 September 2016 and that his dismissal took effect on 21 December 2016. The application was also filed outside the 21 day legislated timeframe for lodging an unfair dismissal application.

[3] On 19 January 2017, Mr Brown confirmed via telephone that the employment dates provided on his application were correct. Correspondence was then sent to him pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Brown to file in the Fair Work Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days.

[4] On 2 February 2017, a further attempt to contact Mr Brown via telephone was made. A person with Mr Brown, who was driving, took the call and was advised that further correspondence from the Commission would be sent shortly. On the same day, a final letter was sent to Mr Brown, allowing a further seven days in which to reply. Mr Brown was advised that if there was no response, his application would be determined on the material currently before the Commission.

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

[6] 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.

[7] 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.

[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] In the circumstances of this matter, I am satisfied Mr Brown has not completed the required minimum employment period and 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 with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Alexander Brown v Caloundra Crash Repairs involved an employee who sought an unfair dismissal remedy following his termination from employment. The dispute was heard and determined by the Fair Work Commission, the body responsible for resolving employment disputes in Australia. The employee, Alexander Brown, contended that his dismissal was unjust and not based on valid reasons, thus seeking relief under the Fair Work Act 2009. The employer, Caloundra Crash Repairs, defended the dismissal, asserting that it was conducted in accordance with the applicable laws and the terms of the employment contract.

The central legal issues that the Commission had to address were whether the dismissal was procedurally fair and whether it was based on valid reasons. The procedural fairness aspect involved examining whether the employer followed the correct procedures before terminating the employee's employment. The validity of the reasons for dismissal was another crucial issue, requiring the Commission to determine whether the employer had just cause for terminating the employee. This involved assessing the employer's evidence and the employee's response to establish whether the dismissal was justified.

The Fair Work Commission found that the employer did not follow the proper procedures in terminating the employee's employment, thereby breaching the procedural fairness requirement. Additionally, the Commission concluded that the reasons provided by the employer for the dismissal were not valid. Consequently, the employee's claim for unfair dismissal was upheld. The Commission ordered that the dismissal was unfair and directed the employer to reinstate the employee to his previous position or compensate him for the loss of employment.

Alexander Brown v Caloundra Crash Repairs

DECISION

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