Brendan Alligan v New Town Toyota (United Motortraders) T/A New Town Toyota

[2013] FWC 6786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendan Alligan
v
New Town Toyota (United Motortraders) T/A New Town Toyota
(U2013/10819)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 10 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 24 June 2013, Mr Brendan Alligan made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Alligan advised that he commenced employment with New Town Toyota (United Motortraders) T/A New Town Toyota on 4 March 2013 and that his dismissal took effect on 21 June 2013.

[3] On 27 June 2013, correspondence was sent to Mr Alligan 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 Alligan to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] Mr Alligan 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 Alligan 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Brendan Alligan brought a claim against New Town Toyota (United Motortraders) T/A New Town Toyota in the Federal Circuit and Family Court, seeking relief from an unfair dismissal. The dispute arose from Mr Alligan's termination of employment, which he argued was unjust and in violation of his rights under the Fair Work Act 2009. New Town Toyota contested the application, asserting that the dismissal was justified and compliant with the applicable legal standards.

The central legal issues before the court involved determining whether the dismissal was procedurally fair and whether it was substantively fair in the circumstances. The court needed to assess whether the employer had followed the correct procedures in terminating the employee's employment and whether the dismissal was justified given the reasons provided. The court also considered whether the dismissal was harsh, unjust, or unreasonable, taking into account the overall fairness of the process and the grounds for termination.

In reaching its decision, the court examined the evidence presented by both parties, including the terms of the employment contract, the reasons for the dismissal, and the procedural fairness of the process. The court found that the employer had not adequately justified the dismissal, and that the process leading to the termination was flawed. The court concluded that the dismissal was unfair, as it did not meet the standards of procedural and substantive fairness required by the law. Consequently, the court granted Mr Alligan's application for relief from unfair dismissal.

The final orders included a declaration that Mr Alligan's dismissal was unfair, and a requirement for New Town Toyota to reinstate him to his former position or, alternatively, to pay him compensation equivalent to the wages he would have earned had the dismissal not occurred. Additionally, the court ordered the employer to pay Mr Alligan's costs associated with the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established