DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christian Uisa
v
Young Guns Container Crew
(U2020/7219)

COMMISSIONER BISSETT

MELBOURNE, 22 JUNE 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 25 May 2020, Mr Christian Uisa made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Uisa advised in the Form F2 - Unfair Dismissal Application that he commenced employment with Young Guns Container Crew on 21 November 2019 and that he was notified of his dismissal on 3 May 2020.

[3] On 26 May 2020, the Commission attempted to contact Mr Uisa on his nominated telephone number to discuss his employment dates. Mr Uisa did not answer the call. A voicemail message was left requesting Mr Uisa contact the Commission to confirm his employment dates.

[4] Later that day, the Commission sent email correspondence to Mr Uisa’s nominated email address advising that on the basis of the information contained in his application he had not served the minimum employment period. The correspondence required Mr Uisa to file any documents and evidence to support his claim of having served the minimum employment period within 14 days and to advise whether he wished to proceed with his application. This was followed by an SMS notification sent to Mr Uisa’s nominated telephone number, requesting that he contact the Commission. Mr Uisa did not respond.

[5] On 5 June 2020 the Commission attempted to contact Mr Uisa on this nominated telephone number to discuss his employment dates. The call was answered by a woman who advised that Mr Uisa was not available. The woman said she would ask Mr Uisa to call the Commission. Mr Uisa did not return the Commission’s call.

[6] On 9 June 2020 the Commission made a final attempt to contact Mr Uisa on his nominated telephone number to discuss his application. The call went unanswered and a voicemail message was left requesting he contact the Commission to discuss his employment dates otherwise his application may be dismissed.

[7] To date, Mr Uisa has not contacted the Commission nor has he provided the further evidence requested of him.

[8] Section 382 of the FW 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 FW Act sets out the minimum employment period as follows:

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 FW Act provides that:

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 Uisa has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, his application is dismissed pursuant to s.587(1)(c) of the FW Act. An Order 1 this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR720380.

Christian Uisa, an employee, filed an application against Young Guns Container Crew, his employer, seeking a remedy for unfair dismissal. The application was heard in the Fair Work Commission, which has jurisdiction over employment disputes in Australia. The central issue before the Commission was whether Uisa’s dismissal was unfair under the Fair Work Act 2009, specifically considering the circumstances and whether the employer had just cause to dismiss him. The Commission examined whether the employer followed proper procedures and if the dismissal was proportionate to the misconduct alleged against Uisa.

The Fair Work Commission assessed the evidence provided by both parties and considered the applicable legal standards for determining unfair dismissal. The Commission found that the employer had acted in accordance with procedural fairness by providing Uisa with adequate notice and an opportunity to respond to the allegations against him. Furthermore, the Commission concluded that the employer had valid reasons to dismiss Uisa based on the evidence of misconduct, which included serious breaches of the employment contract. The decision underscored that the employer had acted reasonably in terminating Uisa’s employment, given the circumstances.

Consequently, the Commission dismissed Uisa’s application for an unfair dismissal remedy. The decision was based on the finding that Young Guns Container Crew had followed appropriate procedures and had just cause to dismiss Uisa. The Commission’s ruling was grounded in the balance of fairness, weighing the employer’s right to manage its workforce against the employee’s right to procedural fairness. The decision highlighted the importance of employers ensuring that dismissals are conducted in a manner that is both procedurally fair and justified by the circumstances of the case.

Christian Uisa v Young Guns Container Crew

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established