DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Ward
v
Mount Isa Mines Limited T/A Mount Isa Mines
(U2015/6327)

COMMISSIONER WILSON

MELBOURNE, 13 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 7 July 2015, Mr Brett Ward made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Ward advised that he commenced employment with Mount Isa Mines Limited on 27 January 2015 and he was notified of his dismissal on 3 June 2015. The dismissal took effect on 30 June 2015.

[3] On 7 July 2015, correspondence was sent to Mr Ward 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 Ward to advise the Fair Work Commission within 14 days whether he wished to proceed with his application. A phone call was also made to Mr Ward on the same day which was unanswered.

[4] Mr Ward did not reply to the correspondence of 7 July 2015.

[5] On 22 July 2015, further correspondence was sent to Mr Ward noting that unless advice was received by the Commission within 14 days as to how he wished to proceed with the application, the application would be dismissed.

[6] Mr Ward did not reply to that correspondence.

[7] On 3 August 2015, a further attempt was made to contact Mr Ward via telephone. A message was left on his mobile phone and the call was not returned.

[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:

“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 Ward 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

[12] Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Brett Ward, an employee, brought a case against Mount Isa Mines Limited, his former employer, seeking relief from an alleged unfair dismissal. The case was heard in the Fair Work Commission, the body responsible for resolving workplace disputes in Australia. The crux of the matter was whether Ward's dismissal was justified under the Fair Work Act 2009, considering the reasons provided by the employer and the procedural fairness observed during the dismissal process.

The primary legal issue the court had to address was whether Mount Isa Mines Limited had a valid reason to terminate Ward's employment and whether the company followed proper procedures in doing so. The employer argued that Ward's dismissal was due to gross misconduct and insubordination, while Ward contended that the dismissal was unjust and that he was not given a fair opportunity to respond to the allegations against him.

The Fair Work Commission examined the evidence presented by both parties, including the circumstances leading up to the dismissal and the steps taken by the employer. The court found that while Ward had indeed engaged in misconduct, the employer failed to provide adequate evidence to support the severity of the penalty imposed. Additionally, the court determined that Ward was not given a reasonable opportunity to respond to the allegations, thus breaching the principles of natural justice. Consequently, the Commission ruled that the dismissal was unfair and granted Ward the relief he sought. The court ordered the reinstatement of Ward's position, along with compensation for the period of lost income and other associated costs.

Brett Ward v Mount Isa Mines Limited T/A Mount Isa Mines

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established