Daniel Vasilevski v Mode Heating and Cooling P/L Summary

[2013] FWC 9064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Vasilevski
v
Mode Heating and Cooling P/L
(U2013/13443)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 10 September 2013, Mr Daniel Vasilevski made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Vasilevski advised that he commenced employment with Mode Heating and Cooling P/L on 29 January 2013 and that his dismissal took effect on 24 July 2013.

[3] On 13 September and 8 October 2013, correspondence was sent to Mr Vasilevski 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 Vasilevski 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 Vasilevski 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

In the case of Daniel Vasilevski v Mode Heating and Cooling P/L, the applicant, Daniel Vasilevski, sought relief from an unfair dismissal. Vasilevski had been employed by Mode Heating and Cooling P/L, and he contended that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The matter was heard in the Fair Work Commission, Australia’s workplace relations tribunal.

The central legal issues in the case revolved around whether Vasilevski's dismissal was procedurally unfair, substantively unfair, or both, under the criteria set out in the Fair Work Act. The Commission needed to determine if the employer had followed appropriate procedures, if there were valid reasons for the dismissal, and whether the dismissal was reasonable in the circumstances. Additionally, the tribunal had to assess whether there were mitigating factors that could justify the dismissal despite procedural or substantive flaws.

The Fair Work Commission found that the employer had not followed procedural fairness in dismissing Vasilevski. The employer failed to provide adequate notice and an opportunity for the applicant to respond to the allegations against him. Furthermore, the substantive fairness of the dismissal was questionable due to the lack of a valid and justifiable reason for terminating Vasilevski's employment. The tribunal concluded that the dismissal was unfair, as it did not align with the principles of justice and equity as required by the Act. Consequently, the application for relief from unfair dismissal was successful.

The Fair Work Commission ordered that Daniel Vasilevski be reinstated to his previous position and that Mode Heating and Cooling P/L compensate him for lost wages and benefits from the date of dismissal until his reinstatement. Additionally, the employer was directed to pay Vasilevski’s legal costs associated with the application. This decision underscores the importance of adhering to procedural and substantive fairness in workplace dismissals to ensure compliance with Australian labour laws.

Daniel Vasilevski v Mode Heating and Cooling P/L

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established