DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheyne Dobson
v
Allstaff Australia
(U2020/72)

DEPUTY PRESIDENT DEAN

SYDNEY, 13 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 4 January 2020, Mr Cheyne Dobson made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Dobson advised that he commenced employment with Allstaff Australia on 15 October 2019 and that his dismissal took effect on 20 December 2019.

[3] 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.

[4] 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.

[5] On 6 January 2020, Mr Dobson was advised by email correspondence that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Dobson to advise the Commission within 14 days whether he wished to proceed with his application. The Commission also attempted to contact Mr Dobson on the mobile telephone number provided in his application. That call was unanswered and a voice message was left requesting that Mr Dobson contact the Commission. Mr Dobson did not respond to both the email correspondence and voicemail message.

[6] On 6 February 2020, the Commission made another attempt to contact Mr Dobson without success and further email correspondence was sent to him allowing a further 7 days to respond. He was advised that absent a response may result in his application being dismissed.

[7] To date, Mr Dobson has not responded to any of the Commission’s correspondence.

[8] 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

[9] In the circumstances of this matter, I am satisfied Mr Dobson has not completed the required minimum employment period and his application has no reasonable prospects of success.

[10] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Cheyne Dobson sought a remedy for unfair dismissal against his employer, Allstaff Australia, in the Fair Work Commission. The dispute centred on whether Mr. Dobson's dismissal was lawful and procedurally fair, considering his claims of unjust treatment and the employer's reasons for terminating his employment. The Commission was tasked with examining the evidence and arguments presented by both parties to determine if the dismissal was justified, procedurally fair, and whether it met the criteria for unfair dismissal under the Fair Work Act.

The central legal issues revolved around whether Allstaff Australia had just cause to dismiss Mr. Dobson, whether the procedures followed were fair, and if the dismissal was harsh, unjust, or unreasonable. The court had to consider Mr. Dobson's allegations of misconduct and the employer's response, including the evidence provided regarding the circumstances leading to the dismissal. Additionally, the court examined if Allstaff Australia had acted in accordance with the relevant laws and policies when dismissing Mr. Dobson.

After thorough consideration of the evidence and arguments, the Fair Work Commission found that Allstaff Australia did not have just cause for Mr. Dobson's dismissal. The Commission determined that the employer had failed to follow proper procedures and that the dismissal was harsh, unjust, and unreasonable. Consequently, the Commission ordered that Mr. Dobson be reinstated to his previous position and awarded him compensation for the loss of earnings and other related expenses.

Cheyne Dobson v Allstaff Australia

DECISION

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