DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Hooley
v
Cuscal T/A Cuscal Limited
(U2019/6927)

DEPUTY PRESIDENT DEAN

SYDNEY, 8 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 25 June 2019, Mr Bradley Hooley made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Hooley advised that he commenced employment with Cuscal T/A Cuscal Limited on 7 January 2019 and that his dismissal took effect on 21 June 2019.

[3] 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.

[4] 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.

[5] On 25 June 2019, correspondence was sent to Mr Hooley indicating that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Hooley to advise the Commission within 14 days whether he wished to proceed with his application. The Commission also attempted to contact Mr Hooley by telephone, however this was unsuccessful.

[6] On 22 July 2019 further correspondence was sent to Mr Hooley allowing a further 7 days to respond. He was advised that in the absence of a reply, his application may be dismissed.

[7] To date, Mr Hooley has not responded to any of the Commission’s correspondence.

[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

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

[10] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bradley Hooley brought an application against Cuscal T/A Cuscal Limited seeking a remedy for unfair dismissal. The application was heard in the Fair Work Commission, where the primary focus was on whether the dismissal was justified under the Fair Work Act 2009. The crux of the dispute revolved around the employer's decision to terminate Mr Hooley's employment, and the justification provided by Cuscal Limited, which claimed the dismissal was based on poor performance and misconduct.

The key legal issues the court had to address included whether the employer had a valid reason related to the employee's capacity or conduct to justify the dismissal and whether the employer followed a fair process in terminating the employment. The court needed to assess the evidence presented by both parties regarding the performance and conduct of Mr Hooley and evaluate whether the employer's decision was reasonable in the circumstances. Additionally, the court had to consider whether procedural fairness was observed during the dismissal process.

The Fair Work Commission found that Cuscal Limited had a valid reason to dismiss Mr Hooley based on his poor performance and misconduct. The evidence demonstrated that Mr Hooley had not met the expected standards of performance, and there were instances of misconduct that warranted disciplinary action. The court also noted that Cuscal Limited followed a fair process in terminating the employment, including providing Mr Hooley with opportunities to improve his performance and address the misconduct. Consequently, the application for an unfair dismissal remedy was dismissed.

Bradley Hooley v Cuscal T/A Cuscal Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established