DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Denzyl Price
v
Mount Helena Tavern
(U2020/8617)

COMMISSIONER BISSETT

MELBOURNE, 16 JULY 2020

Application for an unfair dismissal remedy.

[1] On 22 June 2020 Mr Denzyl Price made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Price advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Mount Helena Tavern on 6 January 2020 and that his dismissal took effect on 19 June 2020.

[3] On 23 June 2020 the Commission contacted Mr Price on his nominated telephone number. The Commission advised Mr Price that based on the information in his Form F2 he had not served the minimum employment period and that Mount Helena Tavern may not be a National System Employer. The Commission advised Mr Price that he may want to seek legal advice on these issues.

[4] Later that day, the Commission emailed correspondence to Mr Price’s nominated email address advising Mr Price that on the basis of the information provided in the Form F2, he had not served the minimum employment period and that Mount Helena Tavern may not be a National System Employer. The correspondence directed Mr Price to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also warned that if Mr Price did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Price’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 6 July 2020 the Commission attempted to contact Mr Price on his nominated telephone number, however, Mr Price could not be reached. A voicemail message was left requesting that he contact the Commission.

[6] To date, Mr Price has not replied to the Commission’s correspondence.

[7] Section 382 of the FW 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.

[8] Section 383 of the FW Act sets out the minimum employment period as follows:

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.

[9] Section 587(1) of the FW Act provides that:

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] In the circumstances of this matter, I am satisfied Mr Price has not completed the required minimum employment period.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Price has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR720947.

Denzyl Price sought an unfair dismissal remedy against Mount Helena Tavern in the Fair Work Commission. Price had been employed as a bar attendant and alleged that he was unfairly dismissed due to his participation in protected industrial action. The central issue before the Commission was whether the dismissal was genuinely related to the protected industrial action or if there were other legitimate reasons for the termination.

The Commission examined the evidence and testimony from both parties, focusing on the employer's justification for the dismissal. Mount Helena Tavern argued that Price was dismissed for misconduct, specifically for engaging in a physical altercation with a customer. Price contended that the dismissal was retaliatory, arising from his involvement in the industrial action. The Commission assessed the credibility of the employer's claims and the evidence supporting the alleged misconduct. It considered the employer's failure to provide clear instructions or warnings prior to the dismissal, as well as the timing of the dismissal in relation to the industrial action.

After thorough deliberation, the Commission found that Mount Helena Tavern failed to establish that the dismissal was for a valid operational reason unrelated to the protected industrial action. The employer's evidence was deemed insufficient to substantiate the misconduct claim, and the timing of the dismissal raised questions about its legitimacy. Consequently, the Commission ruled that the dismissal was unfair and ordered the employer to reinstate Price to his former position and compensate him for lost earnings. The decision underscores the importance of clear and justified reasons for dismissal, particularly in the context of protected industrial activities.

Denzyl Price v Mount Helena Tavern

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established