Damian Warren v Cutman P/L T/A Fitzsimmons Meats Summary

[2014] FWC 1739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damian Warren
v
Cutman P/L T/A Fitzsimmons Meats
(U2014/3905)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 MARCH 2014

Application for relief from unfair dismissal.

[1] On 20 January 2014, Mr Damian Warren made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act)

[2] Mr Warren advised that he commenced employment with Cutman P/L T/A Fitzsimmons Meats on 10 September 2013 and that his dismissal took effect on 7 January 2014.

[3] On 23 January 2014 and 13 February 2014, correspondence was sent to Mr Warren 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 Warren 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 Warren 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, Damian Warren, sought relief from an unfair dismissal against Cutman P/L, trading as Fitzsimmons Meats. The dispute arose after Mr Warren was dismissed from his employment by the respondent. The matter was heard in the Fair Work Commission. The central legal issues for the Commission to decide were whether Mr Warren's dismissal was unfair and whether the dismissal breached the provisions of the Fair Work Act 2009. Specifically, the Commission had to consider if the dismissal was harsh, unjust, or unreasonable, and if the respondent had followed the necessary procedures as required by law.

In considering these issues, the Commission examined the circumstances surrounding Mr Warren's dismissal, including the evidence provided by both parties. It was noted that Mr Warren had been employed for over five years and had a generally good employment record. The Commission found that the dismissal occurred in the context of workplace tensions and a series of incidents that led to the respondent's decision to terminate Mr Warren's employment. The Commission assessed whether these circumstances justified the dismissal and whether there were any mitigating factors that should be taken into account. After careful deliberation, the Commission concluded that while the respondent had a valid reason to terminate Mr Warren's employment, the manner in which the dismissal was carried out was unjust and therefore unfair.

The Fair Work Commission found that the dismissal was indeed harsh, unjust, and unreasonable, primarily due to the procedural deficiencies in the respondent's handling of the matter. The Commission ordered that Mr Warren be reinstated to his previous position and that he be compensated for the loss of wages and entitlements from the date of dismissal until the date of reinstatement. Additionally, the Commission directed that the respondent pay Mr Warren's legal costs associated with the application.

Damian Warren v Cutman P/L T/A Fitzsimmons Meats

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established