Bo Dunn v Canterbury Meats Pty Ltd

[2014] FWC 7435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bo Dunn
v
Canterbury Meats Pty Ltd
(U2014/12526)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 16 September 2014, Mr Bo Damien Dunn made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Dunn advised that he commenced employment with Canterbury Meats Pty Ltd on 28 February 2014 and that his dismissal took effect on 14 August 2014.

[3] On 16 September 2014, correspondence was sent to Mr Dunn 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 Dunn to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 1 October 2014 further correspondence was sent to Mr Dunn allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] Further attempts to telephone Mr Dunn were made on 16 September 2014 and 16 October 2014.

[6] To date, Mr Dunn did not advise whether he wished to proceed with his application.

[7] 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.

[8] 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.

[9] In the circumstances of this matter, I am satisfied Mr Dunn has not completed the required minimum employment period and his application has no reasonable prospects of success.

[10] 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.

[11] 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

In the matter of Bo Dunn v Canterbury Meats Pty Ltd, the applicant, Bo Dunn, sought relief from an unfair dismissal decision made by his employer, Canterbury Meats Pty Ltd. The case was heard in the Fair Work Commission (FWC). Dunn alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The crux of the dispute was the validity of the termination of Dunn’s employment, which was based on allegations of misconduct and poor performance.

The primary legal issues before the Commission were whether the dismissal was harsh, unjust, or unreasonable and if the employer had just cause to terminate Dunn’s employment. The Commission needed to assess the evidence provided by both parties, including the employer’s disciplinary process, the nature of the misconduct, and whether Dunn was given a fair opportunity to respond to the allegations. Additionally, the Commission considered whether the employer followed a reasonable procedure in dismissing Dunn and whether the termination was proportionate to the alleged misconduct.

In delivering its decision, the Commission found that Canterbury Meats Pty Ltd had not followed a fair process in dismissing Dunn. The employer did not provide Dunn with adequate information about the allegations against him and did not allow him sufficient opportunity to respond. Furthermore, the evidence indicated that the employer's decision to terminate Dunn was not based on a reasonable assessment of his performance and conduct. The Commission concluded that the dismissal was unjust, as it did not meet the criteria for a valid termination under the Fair Work Act. Consequently, the Commission ordered that Dunn be reinstated to his previous position and awarded him compensation for the unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established