DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brent Williams
v
Cotecco Pty Ltd
(U2020/111)

COMMISSIONER BISSETT

MELBOURNE, 14 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 6 January 2020 Mr Brent Williams made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Williams advised that he commenced employment with Cotecco Pty Ltd on 14 October 2019 and that his dismissal took effect on 18 December 2019.

[3] On 7 January 2020 the Commission emailed correspondence to Mr Williams at his nominated email address advising that on the basis of the information contained in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Williams to file any documents and evidence to support his claim that he had served the minimum employment period and that if Mr Williams did not contact the Commission within 14 days, his application may be dismissed without further notice.

[4] Later that day, the Commission attempted to contact Mr Williams on his nominated telephone number in relation to the correspondence. A voicemail message was left requesting a return call.

[5] On 6 February 2020 the Commission attempted to contact Mr Williams on his nominated telephone number. A voicemail message was left advising of the minimum employment period issue and requested that Mr Williams contact the Commission to discuss the issue.

[6] Later that day the Commission sent email correspondence to Mr Williams again advising that based on the information he had provided in his Form F2 it appeared that the Commission has no jurisdiction to deal with his application as he had not met the minimum employment period. That correspondence noted that the Commission had not received any documentation from Mr Williams and had not been able to successfully contact him. That correspondence advised that unless Mr Williams contacted the Commission within 7 days and provided an explanation of why he did not respond to the direction in the first correspondence, his application would be determined on the material currently before the Commission without further reference to him.

[7] On 13 February 2020 the Commission attempted to contact Mr Williams on his nominated telephone number. A voicemail message was left requesting an urgent return call and advising that the matter would be referred to a Member of the Commission to make a decision.

[8] To date, no response has been received by Mr Williams.

[9] 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.

[10] Section 383 of the FW 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.

[11] In the circumstances of this matter, I am satisfied Mr Williams has not completed the required minimum employment period.

[12] Section 587(1) of the FW 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

[13] Having regard to the circumstances of this matter, I am satisfied that as Mr Williams has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, his application is dismissed pursuant to s.587(1)(c) of the FW Act. An Order 1 this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR716772.

The matter of Brent Williams versus Cotecco Pty Ltd was brought before the court as an application for an unfair dismissal remedy. Brent Williams, the applicant, sought redress against his former employer, Cotecco Pty Ltd, alleging that his termination from employment was unjust and unfair. The Federal Circuit and Family Court of Australia was tasked with examining the merits of Williams' claim and determining whether the dismissal was indeed unfair within the confines of the Fair Work Act 2009.

The primary legal issue before the court was to ascertain whether the dismissal of Brent Williams was justified, procedurally fair, and whether the employer had a valid reason to terminate his employment. The court examined the specific circumstances surrounding the termination, the reasons provided by the employer, and the procedural fairness applied during the dismissal process. Furthermore, the court considered whether the employer had a reasonable belief that the termination was warranted, and whether the termination was proportionate to the alleged misconduct or underperformance.

Upon review, the court found that the dismissal of Brent Williams was not procedurally fair and lacked a valid substantive reason. The employer failed to provide adequate evidence to support the claims of misconduct or underperformance. The court also highlighted deficiencies in the procedural steps taken before the dismissal, deeming them insufficient to meet the standards of procedural fairness as required by the Fair Work Act. Consequently, the court ruled in favour of Williams, concluding that his dismissal was unfair and ordered that appropriate remedies be provided to him. This included the reinstatement of his employment or, alternatively, compensation for the loss suffered due to the unfair dismissal.

Brent Williams v Cotecco Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established