David Alexander v Hardrock Cafe T/A Hardrock Cafe

[2013] FWC 8036

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

David Alexander
v
Hardrock Cafe T/A Hardrock Cafe
(U2013/12928)

COMMISSIONER WILSON

MELBOURNE, 16 OCTOBER 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 Hardrock Cafe T/A Hardrock Cafe on 27 April 2013 and that his dismissal took effect on 7 August 2013.

[3] On 5 September and 18 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 Mr Alexander 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

[9] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

David Alexander applied for relief from unfair dismissal against Hardrock Cafe T/A Hardrock Cafe. Alexander was employed as a kitchen hand and alleged that his dismissal was harsh, unjust, or unreasonable. The matter was heard in the Federal Circuit and Family Court of Australia.

The central issue was whether Alexander's dismissal was fair and justified under the Fair Work Act 2009. The court needed to consider whether Hardrock Cafe had a valid reason for terminating Alexander's employment, whether the process followed was procedurally fair, and whether the dismissal was proportionate to the reason given. Alexander argued that the dismissal was unjust, while Hardrock Cafe contended that the dismissal was due to poor performance and was justified.

The court examined the evidence provided by both parties and found that Alexander's performance issues were well-documented and that Hardrock Cafe had taken reasonable steps to address these concerns. The court concluded that the dismissal was not harsh, unjust, or unreasonable, and that Hardrock Cafe had a valid reason for terminating Alexander's employment. The court also found that the process followed was procedurally fair and that the dismissal was proportionate to the reason given.

The application for relief from unfair dismissal was dismissed, and no orders were made in favour of Alexander.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established