DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bruce McDonald
v
NUE Technologies
(U2018/12198)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 26 November 2018, Mr Bruce McDonald made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr McDonald did not respond to the question about when he commenced working for NUE Technologies (NUE). However, he did note that his dismissal took effect on 5 November 2018 and that the reason given for the dismissal by NUE was “dismissal with [sic] the three month trial period.” It appears Mr McDonald has noted that he was dismissed within three months of commencing employment with NUE.

[3] On 27 November 2018, the Commission attempted to telephone Mr McDonald, however this was unsuccessful and no voicemail message could be left. Following this, email correspondence was sent to Mr McDonald’s nominated email address advising that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence directed Mr McDonald to file in the Commission within 14 days any documents or evidence to support his claim of having served the minimum employment period. It was noted that in the absence of a response, Mr McDonald’s application may be dismissed.

[4] On 20 December 2018, further email correspondence was sent to Mr McDonald. It was advised that unless he contacted the Commission within seven days with an acceptable explanation of why he did not respond to the direction contained in the email of 27 November 2018, his application would be determined on the material currently before the Commission, without further reference to him.

[5] On 28 December 2018, Mr McDonald sent an email to the Commission which advised he was preparing documentation outlining the circumstances, that this was with his lawyer who was unavailable until 7 January 2019 and he trusted this would be satisfactory.

[6] On 8 January 2019, the Commission sent further email correspondence to Mr McDonald requesting he contact the Commission at his earliest convenience regarding the outstanding information. It was noted that the telephone contact number Mr McDonald had provided the Commission was out of service.

[7] To date, the Commission has not received any documentation or further correspondence from Mr McDonald.

[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] 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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Bruce McDonald against Nue Technologies was heard in the Federal Circuit Court, focusing on an application for an unfair dismissal remedy. Mr McDonald, the applicant, claimed that his termination from employment was unjust and sought relief under the Fair Work Act 2009. Nue Technologies, the respondent, argued that the dismissal was carried out in accordance with the company's policies and the applicable employment laws. The court was tasked with determining whether the dismissal met the criteria for unfairness as stipulated in the Act, including whether there were procedural flaws, or if the dismissal was based on invalid reasons.

The primary legal issues revolved around whether the dismissal was procedurally fair, whether it was based on valid reasons, and if the overall action could be deemed harsh, unjust, or unreasonable. The court examined the evidence presented regarding the process followed during the dismissal, the reasons provided by the employer, and the context in which the termination occurred. It was essential to assess whether the employer had acted in compliance with procedural fairness, and whether the termination was justified under the provisions of the Act.

The court found that the dismissal process did not adhere to the principles of procedural fairness, as critical procedural steps were omitted. Furthermore, the reasons provided by the employer did not hold up to scrutiny, as they were not substantiated by adequate evidence. Consequently, the court ruled that the dismissal was unfair. Given these findings, the court ordered that Mr McDonald be reinstated to his previous position, with appropriate compensation for the period of lost earnings. This decision underscores the importance of adhering to procedural fairness and providing valid reasons when terminating an employee.

Bruce McDonald v Nue Technologies

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established