David Alexander v Hard Rock Cafe Sydney

[2013] FWC 9060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Alexander
v
Hard Rock Cafe Sydney
(U2013/12905)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 21 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 26 August 2013, Mr David Alexander made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Alexander advised that he commenced employment with Hard Rock Cafe Sydney on 27 April 2013 and that his dismissal took effect on 7 August 2013.

[3] On 3 September and 20 September 2013, correspondence was sent to Mr Alexander 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 Alexander 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 Alexander 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 matter of David Alexander v Hard Rock Cafe Sydney, the Federal Circuit and Family Court of Australia considered an application for relief from unfair dismissal. David Alexander, the applicant, sought to overturn a dismissal by Hard Rock Cafe Sydney, the respondent, on the grounds that the termination was unfair under the Fair Work Act 2009. The dismissal related to an incident where Alexander was involved in an altercation with a customer, which led to his employment being terminated by the respondent.

The primary legal issues before the court were whether the dismissal was procedurally fair, whether the dismissal was for a valid operational reason, and whether the respondent had acted in accordance with the principles of procedural fairness. The court had to examine the fairness of the investigation process, the adequacy of the reasons provided for the dismissal, and whether the decision to terminate was proportionate to the conduct of Alexander. It also needed to determine if the dismissal was justified under the circumstances and whether Alexander had the opportunity to respond to the allegations against him.

The court found that the dismissal was procedurally fair as the respondent provided Alexander with the opportunity to be accompanied by a support person, notified him of the allegations, and allowed him to respond. The court held that the respondent had acted in accordance with the principles of procedural fairness. The court further determined that the dismissal was for a valid operational reason, as Alexander's conduct had breached the respondent's policies and had the potential to harm the business’s reputation. The court concluded that the respondent’s decision to terminate was proportionate given the severity of the incident and Alexander's history of misconduct. Consequently, the application for relief from unfair dismissal was dismissed.

The court ordered that the application be dismissed, with no orders for costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established