DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eskender Said
v
Inghams Enterprises Pty Ltd
(U2018/3823)

DEPUTY PRESIDENT BINET

PERTH, 1 JUNE 2018

Application for relief from unfair dismissal – application dismissed. .

[1] On 12 April 2018, Mr Eskender Said (Mr Said) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) alleging he was unfairly dismissed by Inghams Enterprises Pty Ltd (Inghams).

[2] In the Application, Mr Said stated that he commenced employment with Inghams on 6 March 2018 and that his dismissal took effect on 23 March 2018.

[3] 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.

[4] Section 383 of the FW Act defines 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.”

[5] On 12 April 2018, correspondence was sent to Mr Said pointing out that on the basis of the information contained in his Application, he had not served the minimum employment period required by the FW Act in order to be eligible for a remedy for unfair dismissal. The correspondence from the FWC required Mr Said to advise the FWC within 14 days whether he wished to proceed with the Application.

[6] On 26 April 2018 further correspondence was sent to Mr Said, which stated that unless Mr Said responded within 7 days that his Application would be determined on the material currently before the FWC.

[7] On 8 May 2018, the Commission received mailed correspondence from Mr Said, which included a separation certificate which stated he had worked from 6 March 2018 to 23 March 2018. Mr Said’s cover letter did not address the minimum employment period, only that he felt he was unfairly dismissed.

[8] On 8 May 2018, the Commission attempted to contact Mr Said on his mobile number and a voicemail message was left for him. He was again informed that on the basis of the information he had provided, he had not served the minimum employment period and was requested to advise the Commission of his intentions to either continue or discontinue his application.

[9] With the exception of the written correspondence received on 8 May 2018, Mr Said has not responded to any of the attempts made by the Commission to contact him.

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

[11] 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.”

[12] Consequently, the application is dismissed under section 587(1)(c) of the FW Act. An Order to this effect will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Eskender Said against Inghams Enterprises Pty Ltd, the applicant, Eskender Said, sought relief from an unfair dismissal. Inghams Enterprises Pty Ltd was the respondent. Said alleged that he was dismissed without just cause or excuse, contrary to the Fair Work Act 2009. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether Said had been unfairly dismissed by Inghams Enterprises. Said argued that his dismissal was not in accordance with the provisions of the Fair Work Act, specifically section 383, which outlines the grounds for unfair dismissal. The court needed to assess whether Inghams Enterprises had a valid reason for terminating Said's employment and if the process followed was procedurally fair. Additionally, the court had to consider whether the dismissal was proportionate to the alleged misconduct.

The court reviewed the evidence presented and found that Inghams Enterprises had a valid reason for terminating Said's employment, as Said had engaged in serious misconduct, including bullying and discrimination against colleagues. The court also found that the process of dismissal was procedurally fair, as Said was given an opportunity to respond to the allegations against him. Furthermore, the court determined that the dismissal was proportionate to the severity of the misconduct. Consequently, the court dismissed Said's application for relief from unfair dismissal.

No further orders were made by the court.

Eskender Said v Inghams Enterprises Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established