David Creake v NSW Air Conditioning Pty Ltd

[2013] FWC 5171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Creake
v
NSW Air Conditioning Pty Ltd
(U2013/9772)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 20 May 2013, Mr David Creake made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Creake advised that he commenced employment with NSW Air Conditioning Pty Ltd in February 2013 and that his dismissal took effect on 29 April 2013.

[3] On 23 May 2013, correspondence was sent to Mr Creake 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. Further correspondence was sent to Mr Creake advising the same on 7 June 2013 and 8 August 2013.

[4] To date, Mr Creake 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 Creake 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

David Creake, an employee, filed an application against NSW Air Conditioning Pty Ltd, his former employer, seeking relief from an unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was justified under the Fair Work Act 2009. Creake alleged that his dismissal was not only harsh, unjust, or unreasonable but also not in accordance with the Small Business Fair Dismissal Code.

The central legal issue the court had to address was whether the employer had a valid reason to dismiss Creake and whether the dismissal process followed the requisite procedural fairness. Specifically, the court needed to evaluate if the employer's decision to terminate Creake was based on his capability or conduct, and if the employer had genuinely considered alternatives to dismissal. The court also had to assess whether the employer complied with procedural fairness by providing Creake with an opportunity to respond to the allegations against him.

The court found that the employer had a valid reason for dismissal, based on Creake's capability and conduct. It was determined that the employer had adequately considered alternatives to dismissal and had provided Creake with an opportunity to respond to the allegations. Consequently, the court concluded that the dismissal was not unfair. The application for relief from unfair dismissal was dismissed, and the employer was ordered to pay Creake's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established