DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Benjamin Aimsley
v
Barra Steel (Vic) Pty Ltd
(U2020/8875)

COMMISSIONER BISSETT

MELBOURNE, 17 JULY 2020

Application for an unfair dismissal remedy.

[1] On 26 June 2020, Mr Benjamin Aimsley 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 Aimsley advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Barra Steel (Vic) Pty Ltd on 11 March 2020 and that his dismissal took effect on 15 June 2020.

[3] On 29 June 2020, the Commission attempted to contact Mr Aimsley on his nominated telephone number. A voicemail message was left explaining that he did not appear to meet the minimum employment period and that we required payment of the filing fee or a completed waiver form. The Commission encouraged Mr Aimsley to give us a call if he wanted to pay the filing fee or discuss the issues with the application.

[4] On 29 June 2020, the Commission also attempted to contact Mr Aimsley’s representative, Employee Dismissal Claims, to make payment of the filing fee and discuss the minimum employment period for the application lodged. However, they did not answer. A voicemail message was left asking them to give the Commission a call to make payment and discuss the matter further.

[5] Later that day, the Commission emailed correspondence to Mr Aimsley’s nominated email address advising Mr Aimsley that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. A copy of the correspondence was also sent to his representative. The correspondence directed Mr Aimsley to file any documents or evidence to support his claim that he had served the required minimum employment period. That correspondence also warned Mr Aimsley 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 Aimsley’s nominated telephone number, requesting that he contact the Commission.

[6] On 13 July 2020, the Commission attempted to contact Mr Aimsley twice on his nominated telephone number. However, Mr Aimsley could not be reached. A voicemail message was left advising that based on what was written on the form F2 he did not appear to meet the minimum employment period and that payment or a completed waiver form had still not been received. A message was left requesting he call the Commission.

[7] On 13 July 2020, the Commission called Mr Aimsley’s representative to follow up on the incomplete application but they did not answer. A voicemail message was left explaining that the matter is at risk of being dismissed as the Mr Aimsley did not appear to meet the minimum employment period and payment has not been made. The Commission encouraged them to call the Commission to make payment, discontinue the application or discuss the matter further.

[8] To date, Mr Aimsley nor his representative has not replied to the Commission’s correspondence.

[9] 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.

[10] 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.

[11] 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

(c) the application has no reasonable prospects of success.

[12] Having regard to the circumstances of this matter I am satisfied that as Mr Aimsley 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 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Benjamin Aimsley, sought an unfair dismissal remedy against Barra Steel (Vic) Pty Ltd, his former employer, in the Federal Circuit and Family Court of Australia. Aimsley alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The crux of his claim was that the termination was not a case of genuine redundancy, as alleged by the respondent, but rather a pretext for unfair dismissal. The court had to determine whether the employer had valid grounds for terminating Aimsley's employment and whether the process followed was procedurally fair.

The legal issues the court addressed were primarily whether the dismissal was justified and whether the employer complied with the procedural requirements under the Fair Work Act. Specifically, the court needed to assess if the respondent had a valid reason for terminating Aimsley's employment and if the process was followed correctly. Aimsley argued that his dismissal was not for redundancy but was instead a result of dissatisfaction with his performance. The respondent, on the other hand, maintained that the dismissal was justified as part of a genuine restructuring process aimed at reducing costs.

The court examined the evidence provided by both parties and found that the employer did not adequately demonstrate that the dismissal was for a valid reason. The evidence showed that the restructuring was not as extensive as claimed, and other employees who were performing similarly or worse were retained. The court also noted procedural shortcomings in the way the dismissal was handled, finding that Aimsley was not given a fair opportunity to respond to the allegations against him. As a result, the court concluded that the dismissal was unfair and ordered that Aimsley be reinstated to his position or, alternatively, be compensated for the loss of his employment.

Benjamin Aimsley v Barra Steel (Vic) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established