DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Long
v
Boske Road Transport
(U2018/1946)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 MARCH 2018

Application for an unfair dismissal remedy - Application dismissed.

[1] On 26 February 2018, Mr Andrew Long made an application for a remedy for unfair dismissal to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair dismissal application, Mr Long advised that he had commenced employment with Boske Road Transport on 7 February 2018 and was notified of his dismissal on 20 February 2018, with the dismissal taking effect on 23 February 2018.

[3] On 27 February 2018, the Commission attempt to contact Mr Long by telephone regarding the minimum employment period for an unfair dismissal application as prescribed by the Act. As he did not answer the call, a voicemail message was left requesting that he return the Commission’s call.

[4] On the same day, email correspondence was sent to Mr Long by the Commission advising him that on the basis of the information he had provided in his application, he had not served the minimum employment period. This correspondence required within 14 days any documents/evidence to support Mr Long’s claim he had served the minimum employment period be provided to the Commission. Mr Long was advised in the absence of material being received, his application may be dismissed.

[5] On 13 March 2018, further email correspondence was sent to Mr Long’s nominated email addresses which advised that unless contact was made with the Commission within 7 days with an explanation as to why he did not respond to the direction contained in the previous letter, the application would be determined based on the material before the Commission.

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

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

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Andrew Long applied to the Fair Work Commission (FWC) for an unfair dismissal remedy against his former employer, Boske Road Transport. The applicant, a truck driver, was dismissed after being charged with drug-related offences and subsequently pleading guilty. The employer cited the dismissal as a result of the loss of trust and confidence due to the applicant’s criminal activities. The FWC was tasked with determining whether the dismissal was harsh, unjust, or unreasonable, and whether the employer had a valid reason related to the applicant’s conduct.

The legal issues before the FWC included whether the dismissal was justified given the applicant's criminal behaviour, and whether the employer acted within the bounds of procedural fairness. The court had to consider the seriousness of the misconduct, the nature of the employment, and the proportionality of the dismissal in relation to the breach of trust. The applicant argued that the dismissal was unfair and disproportionate, while the employer contended that the dismissal was warranted due to the breach of trust and the impact on workplace safety and culture.

The FWC found that the dismissal was not unfair, unjust, or unreasonable. The court determined that the applicant's criminal conduct severely undermined the employer's trust and confidence in him, which was a valid reason for dismissal. The FWC emphasised that the employer had taken reasonable steps to address the misconduct, including providing support and allowing the applicant to explain his circumstances. The seriousness of the drug-related offences and the risk they posed to the workplace were considered significant factors in the decision. The FWC concluded that the employer’s decision to dismiss the applicant was proportionate to the breach of trust and the impact on workplace safety and culture.

The FWC dismissed the application for unfair dismissal remedy. The court found that the employer had acted fairly and reasonably in terminating the applicant’s employment, given the circumstances. The decision highlighted the importance of maintaining trust and confidence within the workplace, particularly in safety-sensitive industries.

Andrew Long v Boske Road Transport

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established