DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Hamill
v
Crib Group
(U2018/11037)

DEPUTY PRESIDENT DEAN

SYDNEY, 6 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 25 October 2018, Mr Brett Hamill made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Hamill states that he commenced employment with Crib Group on 15 November 2017 and that his dismissal took effect on 15 October 2018.

[3] On 12 November 2018, Crib Group filed an Employer Response (form F3) objecting to the application on the ground that Mr Hamill had not met the minimum employment period. Crib Group submitted that it is a small business with fewer than 15 employees at the time of Mr Hamill’s termination.

[4] On 20 November 2018, correspondence was sent to Mr Hamill indicating that, based on the information contained in the Employer Response, it appeared he may not have served the minimum employment period. The correspondence required Mr Hamill to file a statement within seven days to support his claim of having served the minimum employment period.

[5] On 28 November 2018, correspondence was sent to Mr Hamill noting that he had previously been directed to file a statement in support of his claim that he had served the minimum employment period but had not done so. Mr Hamill was given until 4pm on
30 November 2018 to respond. Mr Hamill was advised that in the absence of any material being received, his application may be dismissed.

[6] Further attempts were made to contact Mr Hamill by telephone on 30 November and 5 December 2018.

[7] To date, Mr Hamill has not responded to the Commission.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if the person 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] 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.

[11] In the circumstances of this matter, I am satisfied Mr Hamill has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Brett Hamill, sought an unfair dismissal remedy against his former employer, Crib Group. The crux of the dispute was whether the dismissal was harsh, unjust, or unreasonable, as per the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the applicant's dismissal was justified under the provisions of the Fair Work Act, particularly section 383, which allows for dismissal on the ground of misconduct. The applicant argued that his dismissal was unfair, while the Crib Group maintained that it was justified due to serious allegations of misconduct, including bullying and inappropriate conduct. The Commission had to determine if the employer's actions were procedurally fair and whether the dismissal was proportionate to the alleged misconduct.

The Commission found that the employer had not adequately followed the procedural requirements stipulated in the Fair Work Act. It was determined that the employer failed to provide the applicant with a reasonable opportunity to respond to the allegations before making the decision to dismiss him. Additionally, the Commission found that the dismissal was disproportionate to the nature of the misconduct. Consequently, the Commission ruled that the dismissal was unfair and ordered the Crib Group to reinstate the applicant and provide compensation for the period of the wrongful dismissal.

Brett Hamill v Crib Group

DECISION

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