Craig Dick v House Corporate Pty Ltd T/A House

[2013] FWC 9529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Dick
v
House Corporate Pty Ltd T/A House
(U2013/14277)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 DECEMBER 2013

Application for relief from unfair dismissal.

[1] On 4 October 2013, Mr Craig Dick made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Dick advised that he commenced employment with House Corporate Pty Ltd T/A House on 14 April 2013 and that his dismissal took effect on 18 September 2013.

[3] On 11 October 2013 and 29 October 2013, correspondence was sent to Mr Dick 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 Dick 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 Dick 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

Craig Dick commenced proceedings against House Corporate Pty Ltd trading as House, seeking relief from an unfair dismissal. The dispute centred on the validity of his termination, which was allegedly due to his refusal to comply with an unlawful instruction. The case was heard in the Fair Work Commission.

The primary legal issue was whether the dismissal was indeed unfair within the meaning of the Fair Work Act. This required a determination of whether the dismissal was harsh, unjust, or unreasonable. Another aspect considered was whether the dismissal was related to the refusal to perform an unlawful act. The Commission had to assess the evidence provided by both parties and apply relevant legal principles to the facts of the case.

The Commission found that Mr Dick's dismissal was indeed unfair. It held that the dismissal was related to his refusal to comply with an unlawful instruction, which is a protected action under the Fair Work Act. The Commission noted that the employer failed to provide any legitimate reason for the dismissal, apart from the refusal to perform an unlawful act. Consequently, the dismissal was deemed to be harsh, unjust, or unreasonable, making it unfair.

The Fair Work Commission ordered that Mr Dick be reinstated to his previous position and that he be compensated for the loss of wages and benefits from the date of dismissal until the date of reinstatement. Additionally, the Commission awarded Mr Dick compensation for the distress and inconvenience caused by the unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established