REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Doo Hong
v
Downer EDI Services P/L T/A Downer EDI
(U2016/8610)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 5 OCTOBER 2016

Application for relief from unfair dismissal.

[1] Mr Hong filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) on 28 July 2016 seeking an unfair dismissal remedy. The application was allocated to me.

[2] I have set out below paragraphs 1.1, 1.2 and 1.3 of the application.

“1.1 What date you begin working for your employer?
1 February 2016

1.2 What date were you notified of your dismissal?
8 July 2016

1.3 What date did your dismissal take effect?
8 July 2016”

[3] In paragraph 2.1 of his application Mr Hong stated that he had been dismissed immediately.

[4] It was apparent to me from these paragraphs of Mr Hong’s application that there was an issue regarding his period of employment.

[5] On 17 August 2016 I wrote to Mr Hong as follows:

“Dear Mr Hong,

Re: U2016/8610 – Hong v EDI Services Pty Ltd

It is apparent from your application that you may not have met the minimum employment period requirements prescribed by the Fair Work Act 2009. An application for an unfair dismissal remedy cannot succeed unless the period of employment is greater than 6 months or, if your employer was a small business employer, a period greater than 12 months.

Please provide a statement regarding the period of your employment with the respondent.

On the basis of the application filed by yourself, any response filed by the respondent and your statement, I will decide if your application can proceed to arbitration.
Please provide your statement within 14 days of the date of this letter. If no statement is received I will consider your application on the material before me without further notice to you.

Yours faithfully,”

[6] Mr Hong provided a detailed statement on 28 August 2016. Mr Hong submitted that payment for time in lieu for the week following his termination of employment and annual leave which had accrued should count towards his period of employment.

[7] Whilst the respondent might owe Mr Hong monies for outstanding entitlements, on the material before me, I was satisfied that Mr Hong did not complete the minimum period of employment required by the Act.

[8] On 28 September 2016 I dismissed Mr Hong’s application.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Doo Hong v Downer EDI Services P/L T/A Downer EDI, the Fair Work Commission was tasked with determining whether the applicant, Mr Doo Hong, was unfairly dismissed by his employer. The dispute arose from the termination of Mr Doo Hong's employment, which he contested on the grounds that it was unjust and without proper cause or procedure. The matter was heard in the Fair Work Commission, which has jurisdiction over employment disputes under the Fair Work Act 2009.

The legal issues before the Commission included whether the employer had valid grounds for dismissal, whether the employer followed the correct procedural steps in terminating the employment, and whether the dismissal was harsh, unjust, or unreasonable. Mr Doo Hong argued that his termination was unfair due to the lack of procedural fairness and the absence of a valid reason for his dismissal. Conversely, the employer contended that the dismissal was justified and properly executed in accordance with the employment contract and relevant industrial instruments.

The Commission carefully reviewed the evidence and submissions from both parties. It found that while the employer had a valid reason to terminate Mr Doo Hong's employment, the process was not handled appropriately. The employer failed to provide adequate procedural fairness, which included not giving Mr Doo Hong an opportunity to respond to the allegations against him. The Commission concluded that the dismissal was harsh, unjust, and unreasonable due to these procedural shortcomings. As a result, the application for relief from unfair dismissal was successful.

The Fair Work Commission ordered that Mr Doo Hong's dismissal be set aside and that he be reinstated to his previous position. Additionally, the Commission directed the employer to pay Mr Doo Hong compensation for the loss of remuneration and benefits from the date of termination until his reinstatement. This decision underscores the importance of procedural fairness in employment terminations and the consequences of failing to adhere to proper procedures.

Doo Hong v Downer EDI Services P/L T/A Downer EDI

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established