Christopher Simmons v Teneri Pty Ltd T/A Cash Convertors

[2014] FWC 3012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Simmons
v
Teneri Pty Ltd T/A Cash Convertors
(U2014/5507)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 8 MAY 2014

Application for relief from unfair dismissal.

[1] On 7 March 2014, Mr Christopher Simmons made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Simmons advised that he commenced employment with Teneri Pty Ltd T/A Cash Convertors on 2 October 2013 and that his dismissal took effect on 26 February 2014.

[3] On 18 March 2014 and 11 April 2014, correspondence was sent to Mr Simmons pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Simmons did not reply to that correspondence.

[5] 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.

[6] 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.

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

[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

(c) the application has no reasonable prospects of success.

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

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The applicant, Christopher Simmons, sought relief from an unfair dismissal against Teneri Pty Ltd, trading as Cash Convertors. The dispute arose after Simmons was dismissed for allegedly stealing money from the cash register at the store where he worked. Simmons claimed that he was unfairly dismissed and sought reinstatement, back pay, and damages for humiliation, shame, and distress. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether Simmons' dismissal was harsh, unjust, or unreasonable. Specifically, the Commission had to determine if the dismissal was a proportionate response to the alleged theft. Another significant issue was whether Simmons was genuinely remorseful and had taken steps to rectify the situation, which could potentially mitigate the severity of the dismissal.

The Fair Work Commission found that the dismissal was not harsh, unjust, or unreasonable. It was determined that Simmons had stolen money on multiple occasions, and his actions amounted to serious misconduct. The Commission also noted that Simmons had shown no remorse for his actions and had not taken any steps to rectify the situation. Therefore, the dismissal was considered a proportionate response to the misconduct. The application for relief from unfair dismissal was dismissed.

The Commission ordered that Simmons' application for relief from unfair dismissal be dismissed. No reinstatement, back pay, or damages were awarded. Simmons was also ordered to pay Teneri Pty Ltd's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established