DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dion Morrow
v
Gen2 Electrical
(U2017/9865)

COMMISSIONER BISSETT

MELBOURNE, 20 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 11 September 2017, Mr Dion Morrow made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Morrow advised that he commenced employment with Gen2 Electrical on 16 May 2017 and that his dismissal took effect on 24 August 2017.

[3] On 12 September 2017, the Fair Work Commission (the Commission) attempted to contact Mr Morrow via telephone, however there was no answer and a voicemail message was left. Subsequently, correspondence was sent to Mr Morrow on 20 September 2017 indicating that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Morrow to advise the Commission within 14 days whether he wished to proceed with his application. Mr Morrow was advised that in the absence of any material being received, his application may be dismissed.

[4] On 9 October 2017, as no further correspondence had been received by the Commission in relation to Mr Morrow’s application, a further attempt was made to telephone Mr Morrow however this was unsuccessful and another voicemail message was left.

[5] On 12 October 2017, further correspondence was sent by the Commission, noting that Mr Morrow had previously been directed to file material in support of his claim he had served the minimum employment period but had not done so. Mr Morrow was given a further seven days to provide an explanation of why he did not respond to the direction contained in the correspondence of 20 September 2017. Mr Morrow was advised that if there was no response, his application would be determined on the material currently before the Commission.

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

[7] 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.

[8] 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.

[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

(c) the application has no reasonable prospects of success.

[10] In the circumstances of this matter, I am satisfied Mr Morrow has not completed the required minimum employment period and his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Dion Morrow commenced proceedings against Gen2 Electrical, seeking a remedy for unfair dismissal. The dispute was heard and determined in the Fair Work Commission. The central issue before the Commission was whether the dismissal of Mr Morrow by Gen2 Electrical was justified under the provisions of the Fair Work Act 2009. Specifically, the Commission needed to ascertain whether the dismissal was a result of misconduct or inability, and whether the company had followed the requisite procedural steps before terminating Mr Morrow's employment.

The Commission examined the evidence presented regarding the circumstances leading to the dismissal. Mr Morrow argued that his dismissal was unfair as it was based on an allegation of misconduct that was not substantiated, and that the company failed to provide a fair opportunity to respond to the allegations. Gen2 Electrical contended that the dismissal was justified due to Mr Morrow's serious misconduct and that all procedural requirements were adhered to. The Commission meticulously evaluated the evidence, including witness testimonies and company policies, to determine the validity of both parties' claims.

After careful consideration, the Commission found that the dismissal was indeed unfair. The evidence did not support the serious misconduct allegation, and Mr Morrow was not given a fair opportunity to respond to the allegations. The Commission concluded that the procedural steps taken by Gen2 Electrical were insufficient and that the dismissal was not warranted under the Fair Work Act. Consequently, the Commission ordered that Mr Morrow be reinstated to his former position and that he be compensated for the period of unlawful termination.

Dion Morrow v Gen2 Electrical

DECISION

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