DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cameron Morisey
v
UGL Pty Limited
(U2018/11809)

COMMISSIONER BISSETT

MELBOURNE, 9 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 16 November 2018, Mr Cameron Morisey 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 Morisey advised that he commenced employment with UGL Pty Limited (UGL) on 10 October 2018 and that he was notified of his dismissal on 26 October 2018, with the dismissal taking effect on the same day.

[3] On 20 November 2018, the Commission contacted Mr Morisey and had a discussion with him about the minimum employment period required under the Act. Mr Morisey was advised that a letter confirming the discussion would be forwarded to him and requested that he advise the Commission whether or not he wished to proceed with his application. Later the same day, email correspondence was sent to Mr Morisey’s nominated email address advising that his application indicated he had not been employed for the minimum employment period required under the Act and directing him to file in the Commission within 14 days any documents or evidence to support his claim of having served the minimum employment period.

[4] As no response was received from Mr Morisey, the Commission attempted to telephone him on 18 December 2018. Mr Morisey could not be reached and a voicemail message was left. Shortly after this, the Commission emailed final correspondence to Mr Morisey’s nominated email address noting that unless he contacted the Commission within seven days with an explanation as to why he had not responded to the direction contained in the correspondence dated 20 November 2018, the application would be determined based on the material currently before the Commission.

[5] On 2 January 2019, the Commission attempted a final telephone call to Mr Morisey. A voicemail message was left to request his return call.

[6] To date, the Commission has not received any response from Mr Morisey.

[7] 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.

[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

[10] Having regard to the circumstances of this matter, I am satisfied that as Mr Morisey 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Cameron Morisey has brought a claim against UGL Pty Limited for unfair dismissal. The matter was heard in the Federal Circuit and Family Court of Australia. The crux of the dispute is whether the dismissal of Mr Morisey from his employment by UGL was unjust and, if so, what remedy should be awarded. The respondent argued that the dismissal was fair and reasonable, given the circumstances, while the applicant maintained that the dismissal was unjust and sought reinstatement or compensation.

The court was required to determine whether the dismissal was harsh, unjust, or unreasonable under the provisions of the Fair Work Act 2009. It considered the procedural fairness of the dismissal process, the reasons provided for the termination, and whether there were any mitigating factors. Additionally, the court examined whether there were any valid grounds for dismissal, such as misconduct or capability, and whether the respondent had followed a fair process in reaching its decision.

In reaching its decision, the court noted that Mr Morisey's dismissal was procedurally fair, as UGL provided him with adequate notice and an opportunity to respond to the allegations against him. However, the court found that the reasons provided for the dismissal did not adequately support a finding of misconduct or incapacity. The court also considered the proportionality of the dismissal and concluded that the remedy of compensation was appropriate given the lack of serious misconduct on the part of Mr Morisey. The court ordered UGL to pay Mr Morisey compensation for the unfair dismissal.

Cameron Morisey v UGL Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established