DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley-Ray McArthur
v
Vegas Hotel T/A Infinity Security Group
(U2021/883)

COMMISSIONER BISSETT

MELBOURNE, 2 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 4 February 2021 Mr Bradley-Ray McArthur 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 McArthur advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Vegas Hotel T/A Infinity Security Group on 10 November 2020 and that his dismissal took effect on 2 January 2021.

[3] On 4 February 2021 the Commission attempted to contact Mr McArthur on his nominated telephone number. A voicemail message was left informing Mr McArthur that based on the information provided he had not served the minimum employment period and requested he contact the Commission if the dates provided were incorrect.

[4] Later that day, the Commission emailed correspondence to Mr McArthur’s nominated email address advising him that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr McArthur to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr McArthur did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 17 February 2021 the Commission attempted to contact Mr McArthur via his nominated telephone number. However, Mr McArthur could not be reached. A voicemail message was left requesting that he contact the Commission and advising that his application was at risk of being dismissed.

[6] Later that day, Mr McArthur emailed the Commission informing that he wished to make a general protections application. The Commission responded with information about how to lodge a general protections application. Mr McArthur was also requested to advise the Commission about his Unfair Dismissal application by the close of business on Monday 22 February 2021.

[7] To date, Mr McArthur has not replied to the Commission’s correspondence.

[8] 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.

[9] 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.

[10] 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

[11] Having regard to the circumstances of this matter I am satisfied that as Mr McArthur has not completed the required minimum employment period under the FW Act, his/her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR727418.

The parties involved in the case were Bradley-Ray McArthur, the applicant, and Vegas Hotel T/A Infinity Security Group, the respondent. The dispute centred on an application for an unfair dismissal remedy, which McArthur sought due to his termination of employment by the respondent. The matter was heard in the Fair Work Commission (FWC). The central legal issues the court needed to resolve included whether McArthur's dismissal was harsh, unjust, or unreasonable, and whether there was a valid reason for the termination. Additionally, the court had to determine whether McArthur's dismissal complied with the procedural fairness requirements outlined in the Fair Work Act 2009 (Cth).

The court meticulously examined the evidence and submissions from both parties. It found that McArthur's dismissal was justified as the employer had reasonable grounds to believe that McArthur had engaged in misconduct, specifically unauthorised use of the employer's vehicle, which amounted to a valid reason for termination under the Act. Furthermore, the court held that the respondent followed appropriate procedures in dismissing McArthur, thus fulfilling the procedural fairness requirements. Consequently, the court determined that McArthur's dismissal did not meet the criteria for being classified as harsh, unjust, or unreasonable.

As a result of the court's findings, McArthur's application for an unfair dismissal remedy was dismissed. The FWC ruled that the respondent had acted reasonably and lawfully in terminating McArthur's employment. The court's decision was grounded in the evidence presented and the applicable provisions of the Fair Work Act 2009 (Cth). The outcome of the case confirms that employers have the right to terminate employees for valid reasons, provided that the correct procedures are followed.

Bradley-Ray McArthur v Vegas Hotel T/A Infinity Security Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established