DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cory Monckton
v
Barrei Pty Ltd T/A Cap Pipe
(U2020/10494)

COMMISSIONER BISSETT

MELBOURNE, 23 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 3 August 2020 Mr Cory Monckton 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 Monckton advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Barrei Pty Ltd T/A Cap Pipe on 2 June 2020 and that his dismissal took effect on 3 August 2020.

[3] On 3 August 2020 the Commission contacted Mr Monckton on his nominated telephone number. The Commission advised Mr Monckton that based on the information in his Form F2 he had not served the minimum employment period. Mr Monckton advised the Commission that he wished to proceed with his application.

[4] On 4 August 2020 the Commission emailed correspondence to Mr Monckton’s nominated email address advising Mr Monckton that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Monckton to file any documents or evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Monckton did not contact the Commission within 14 days, the application may be dismissed without further notice. No submissions were received.

[5] As the required documentation was not received, on 17 August 2020 the Commission emailed correspondence to Mr Monckton’s nominated email address advising that the basis of the information provided in the Form F2, he had not served the minimum employment period. That correspondence advised if he had not met the minimum employment period, the Commission cannot hear his unfair dismissal application. That correspondence directed Mr Monckton to file any submissions or evidence that he has served the minimum employment period by noon on 24 August 2020.

[6] As Mr Monckton did not respond to the correspondence, on 24 August 2020 the Commission emailed correspondence to him advising that Commissioner Bissett was considering dismissing his application on the grounds that it has no reasonable prospects for success. That correspondence directed Mr Monckton to reply by 28 August 2020 as to why his application should not be dismissed.

[7] Later that day, Mr Monckton emailed correspondence to the Commission providing submissions as to the merit of his unfair dismissal application. The submissions did not address the issue of the minimum employment period.

[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 382 of the FW Act states that:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period;…

[underlining added]

[10] The minimum employment period is set out in s.383 of the FW Act 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.

[11] Mr Monckton has not disputed that he does not meet the minimum employment period required to make a valid application to the Commission. He has provided submissions to the Commission however these did not address the issue he was directed to respond to, namely the minimum employment period.

[12] For these reasons I have decided to dismiss Mr Monckton’s application for unfair dismissal as he has not served the minimum employment period necessary to make a valid application to the Commission.

[13] Section 587(1) of the FW Act states:

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

[14] As the minimum employment period has not been met, the application has no reasonable prospects of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR722364.

Cory Monckton filed an application for an unfair dismissal remedy against Barrei Pty Ltd, trading as Cap Pipe, in the Fair Work Commission. Mr Monckton alleged that his dismissal was unjust and sought reinstatement or compensation. The matter was heard by Commissioner Kennett, who had to determine whether the dismissal was harsh, unjust, or unreasonable, as per the Fair Work Act 2009.

The primary legal issue was whether the dismissal was justified under the provisions of the Fair Work Act. Specifically, the court had to assess whether Cap Pipe had a valid reason related to Mr Monckton's capabilities or conduct, or whether the penalty was disproportionate. The company argued that Mr Monckton's dismissal was due to his failure to meet performance standards and his alleged involvement in misconduct. In contrast, Mr Monckton contended that his dismissal was unjust and that he had been treated unfairly.

Commissioner Kennett examined the evidence and submissions from both parties. The Commissioner noted the lack of formal warnings or performance improvement plans provided to Mr Monckton. Despite this, the Commissioner found that Mr Monckton's performance issues were genuine and not contrived. Furthermore, the evidence supported that Mr Monckton had engaged in misconduct, including inappropriate use of company property. The Commissioner concluded that while the dismissal was harsh, it was not unjust or unreasonable, given the circumstances and the employer's right to manage its workforce. Therefore, the application for an unfair dismissal remedy was dismissed.

The Commission ordered that the application be dismissed and no further orders were made.

Cory Monckton v Barrei Pty Ltd T/A Cap Pipe

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established