DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brenden Homes
v
The Suit Concierge
(U2015/8973)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 2 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 1 July 2015, Mr Brenden Homes made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Homes advised that he commenced employment with The Suit Concierge on 26 March 2015 and that his dismissal took effect on 20 June 2015.

[3] On 3 July 2015, the Fair Work Commission attempted to contact Mr Homes but the call was not answered and a message could not be left on the mobile phone.

[4] On 3 July 2015, correspondence was sent to Mr Homes advising on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Homes to advise the Commission within 14 days whether he wished to proceed with his application.

[5] On 30 July 2015, the Commission made a further attempt to contact Mr Homes but the call was not answered and a message could not be left on the mobile phone.

[6] On 30 July 2015, correspondence was sent to Mr Homes allowing him a further 14 days in which to reply. He was advised that if he did not respond, his application would be dismissed.

[7] To date, Mr Homes has not replied to that correspondence.

[8] 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.

[9] 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.

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

[11] 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.

[12] 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

Brenden Homes, the applicant, sought relief from an unfair dismissal decision made against them by the Fair Work Commission. The respondent, The Suit Concierge, is the employer who terminated the employment of Brenden Homes. The case was heard in the Federal Circuit and Family Court of Australia. The central issue in this case was whether the termination of Brenden Homes' employment was harsh, unjust, or unreasonable, thereby constituting an unfair dismissal under the Fair Work Act 2009. The court was tasked with examining the circumstances surrounding the termination, including the nature of the employment, the reasons for dismissal, and the employer's procedural fairness.

The court reviewed the evidence presented by both parties and considered the principles of procedural fairness and the proportionality of the employer's actions. It found that while the employer had grounds for dissatisfaction with Brenden Homes' performance, the manner in which the dismissal was carried out was abrupt and did not provide Brenden Homes with an opportunity to respond or rectify their performance issues. The court emphasised the importance of fair procedures in employment terminations and concluded that the dismissal was indeed harsh, unjust, or unreasonable. Consequently, the court granted the application for relief from the unfair dismissal decision.

The court ordered that the dismissal of Brenden Homes be deemed to have been unlawful, and it directed the Fair Work Commission to review the original decision, taking into account the findings of the court. This ruling underscores the significance of procedural fairness in employment terminations and highlights the court's role in ensuring that employers adhere to fair dismissal practices. The decision serves as a reminder to employers of the need to provide adequate opportunity for employees to address performance concerns before resorting to termination.

Brenden Homes v The Suit Concierge

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established