Bienvenido Ortega v Flamingo Holdings Pty Ltd T/A Geraldton Fish Market

[2013] FWC 9067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bienvenido Ortega
v
Flamingo Holdings Pty Ltd T/A Geraldton Fish Market
(U2013/13540)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 12 September 2013, Mr Bienvenido Ortega made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Ortega advised that he commenced employment with Flamingo Holdings Pty Ltd T/A Geraldton Fish Market on 21 May 2013 and that his dismissal took effect on 26 August 2013.

[3] On 13 September and 8 October 2013, correspondence was sent to Mr Ortega pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Ortega 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 Ortega 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

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CaseChat Overview and Summary

Bienvenido Ortega, a former employee, brought an application for relief from unfair dismissal against Flamingo Holdings Pty Ltd, trading as Geraldton Fish Market, before the Fair Work Commission. Ortega alleged that his dismissal was unjust and contrary to the principles enshrined in the Fair Work Act 2009. The crux of the dispute centred around the procedural fairness and the substantive fairness of the dismissal, including whether there were genuine reasons for termination and whether the employer acted reasonably in the circumstances.

The primary legal issues the Commission needed to address were whether the employer had just cause for the dismissal, whether the process leading to the dismissal was fair, and if the dismissal was proportionate to the alleged misconduct. The Commission considered evidence regarding the employer's disciplinary process, the nature of the alleged misconduct, and the employer's adherence to its own policies and procedures during the investigation and dismissal.

The Fair Work Commission concluded that the employer had not demonstrated just cause for the dismissal as the evidence provided was insufficient to substantiate the allegations of serious misconduct. Furthermore, the Commission found that the employer failed to follow its own disciplinary procedures, thereby undermining the procedural fairness of the dismissal. As a result, the Commission ruled that the dismissal was unfair and ordered that Ortega be reinstated to his position, with appropriate compensation for the period of lost earnings and any associated damages. This decision underscored the importance of adherence to procedural fairness and the necessity for employers to substantiate their claims adequately before taking disciplinary action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established