Amirali Miriyan v Adam Kaplan T/A North Shore Auto Group

[2013] FWC 7487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amirali Miriyan
v
Adam Kaplan T/A North Shore Auto Group
(U2013/2342)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 26 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 16 July 2013, Mr Amirali Miriyan made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Miriyan advised that he commenced employment with Adam Kaplan T/A North Shore Auto Group in February 2013 and that his dismissal took effect on 16 July 2013.

[3] On 19 July 2013 and 8 August 2013, correspondence was sent to Mr Miriyan 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 Miriyan to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] Mr Miriyan 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 Mr Miriyan has not completed the required minimum employment period and his 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

In the case of Amirali Miriyan v Adam Kaplan T/A North Shore Auto Group, the applicant, Amirali Miriyan, sought relief from an unfair dismissal decision made by his employer, Adam Kaplan trading as North Shore Auto Group. The dispute arose when Miriyan was dismissed from his employment, and he subsequently lodged an application for unfair dismissal with the Fair Work Commission. The Commission found that the dismissal was not unfair, and Miriyan appealed this decision to the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the Fair Work Commission's decision to dismiss Miriyan's unfair dismissal application was correct. Specifically, the court had to determine whether the Commission erred in its assessment of the evidence and in its application of the relevant legal principles. The court also had to consider whether the employer had a valid reason for dismissing Miriyan, and whether Miriyan's dismissal was procedurally fair.

The court found that the Fair Work Commission had not erred in its assessment of the evidence or in its application of the relevant legal principles. The court held that the employer had a valid reason for dismissing Miriyan, which was his failure to follow the employer's policies and procedures. The court also found that the dismissal was procedurally fair, as Miriyan was given an opportunity to respond to the allegations against him and to present any evidence or arguments in his defence. The court further held that Miriyan's dismissal did not constitute harsh, unjust or unreasonable conduct, as required by the Fair Work Act. Therefore, the court dismissed Miriyan's appeal and upheld the Commission's decision.

The court's final orders were that Miriyan's appeal be dismissed, that the Fair Work Commission's decision be upheld, and that costs be awarded to the respondent. The court did not grant any relief to Miriyan and did not make any orders for compensation or reinstatement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established