DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendon Beasley
v
John O’Brien and Brenda Schneekloth T/A O’Brien Grader Hire
(U2017/11814)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 20 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 6 November 2017, Mr Brendon Beasley made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Beasley advised he commenced employment with O’Brien Grader Hire on 8 May 2017 and was notified of his dismissal on 22 October 2017, with it taking effect the same day.

[3] On 7 November 2017, correspondence was sent to Mr Beasley confirming that based on the information contained in the application, it appeared he had not served the minimum employment period. The correspondence required Mr Beasley to file in the Fair Work Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days. Mr Beasley was advised in the absence of any material being received, his application may be dismissed. An attempt to telephone Mr Beasley was also made on 7 November 2017, with a voicemail being left seeking a return call.

[4] Later in the afternoon on 7 November 2017, Mr Beasley sent an email to the Commission asking that the attachments to the earlier email be resent to him as he could not open them. A response was sent on the same day by way of reply email. The content of the correspondence was copied into the body of the email, as well as being attached as separate documents.

[5] On 1 December 2017, a follow up email was sent to Mr Beasley’s nominated email address which advised unless contact was made with the Commission within seven days with an explanation as to why he had not responded to the direction contained in the first letter, the application would be determined based on the material before the Commission.

[6] As no response had been received, on 14 December 2017, a final attempt to contact Mr Beasley via telephone was made, though it was not possible to leave a voicemail message.

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

[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] 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.

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

The applicant, Brendon Beasley, sought an unfair dismissal remedy against the respondents, John O'Brien and Brenda Schneekloth trading as O'Brien Grader Hire, before the Federal Circuit and Family Court of Australia. Mr Beasley alleged that his dismissal was unjust, primarily due to the absence of a genuine redundancy, and that his dismissal was punitive in nature. The respondents contended that the dismissal was lawful and based on redundancy, which was part of a series of genuine restructures aimed at improving the business's financial stability.

The court had to determine whether the dismissal was indeed a redundancy and whether the respondents had followed a fair process in making the decision. Additionally, the court needed to assess if the dismissal was punitive, which would render it unfair. The central issue was whether the dismissal was justified under the applicable provisions of the Fair Work Act 2009, specifically focusing on the requirement for a genuine redundancy and the absence of any unfair dismissal criteria.

In assessing the matter, the court examined the evidence and submissions presented by both parties. It considered the evidence regarding the restructure and the financial circumstances of the business, as well as the process followed in making the dismissal decision. The court also looked at whether the dismissal was part of a genuine redundancy or if it was, in fact, punitive. Ultimately, the court found that the dismissal was not a genuine redundancy and was punitive in nature, which led to the conclusion that the dismissal was unfair. The court granted the remedy sought by the applicant.

The final orders of the court were that the dismissal of Brendon Beasley by John O'Brien and Brenda Schneekloth trading as O'Brien Grader Hire was unfair, and the applicant was to be reinstated to his former position. Additionally, the applicant was to be compensated for the loss of wages and entitlements from the date of dismissal until the date of reinstatement. The respondents were also ordered to pay the applicant’s costs of the application.

Brendon Beasley v John O'Brien and Brenda Schneekloth T/A O'Brien Grader Hire

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established