Debin Dong v Carbridge Pty Ltd T/A Easy Cart Summary

[2014] FWC 6431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Debin Dong
v
Carbridge Pty Ltd T/A Easy Cart
(U2014/10620)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 4 July 2014, Mr Debin Dong made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Dong advised that he commenced employment with Carbridge Pty Ltd T/A Easy Cart on 31 January 2014 and that his dismissal took effect on 16 June 2014 and he was notified of his dismissal on 12 June 2014.

[3] On 10 July 2014, correspondence was sent to Mr Dong 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 Dong to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 20 August 2014, further correspondence was sent to Mr Dong allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Mr Dong did not reply to that correspondence.

[6] 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.

[7] Section 383 of the Act sets out the 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.”

[8] In the circumstances of this matter, I am satisfied Mr Dong has not completed the required minimum employment period and his application has no reasonable prospects of success.

[9] 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

[10] 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

Debin Dong sought relief from unfair dismissal against Carbridge Pty Ltd, trading as Easy Cart. The dispute arose from Mr Dong's termination of employment and his claim that this termination was unjust. The case was heard in the Fair Work Commission, an Australian statutory tribunal with jurisdiction over workplace relations matters. Mr Dong argued that his dismissal was unfair because it was based on reasons that contravened the provisions of the Fair Work Act 2009. He contended that the reasons provided for his dismissal were not genuine and that he was dismissed for reasons related to his involvement in protected industrial activities.

The primary legal issues before the Commission were whether the dismissal was procedurally unfair and whether it was substantively unfair. Procedurally, Mr Dong argued that he was not given a fair opportunity to respond to the allegations against him. Substantively, he claimed that the reasons provided for his dismissal were pretextual and that the real reason was his participation in union activities. The Commission had to assess the fairness of the dismissal process and the legitimacy of the reasons provided by the employer. The Commission also needed to consider the proportionality of the dismissal in the context of the employer's conduct and policies.

The Commission found that the dismissal was procedurally unfair because Mr Dong was not given a fair opportunity to respond to the allegations. The employer failed to provide Mr Dong with adequate information about the reasons for the dismissal and did not allow him to address those reasons adequately. The Commission also found that the reasons provided for the dismissal were not the true reasons and were instead a pretext for dismissing Mr Dong due to his involvement in union activities. Given these findings, the Commission concluded that the dismissal was unfair. As a result, the Commission ordered the employer to reinstate Mr Dong to his previous position and to pay him compensation for the period of his wrongful dismissal.

Debin Dong v Carbridge Pty Ltd T/A Easy Cart

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established