Germaine Mbuto v Hans Continental Smallgoods Pty Ltd T/A Primo Hans Queensland Summary

[2013] FWC 7568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Germaine Mbuto
v
Hans Continental Smallgoods Pty Ltd T/A Primo Hans Queensland
(U2013/12236)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 30 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 5 August 2013, Mr Germaine Mbuto made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Mbuto advised that he commenced employment with Hans Continental Smallgoods Pty Ltd T/A Primo Hans Queensland on 13 March 2013 and that his dismissal took effect on 22 July 2013.

[3] On 7 August and 22 August 2013, correspondence was sent to Mr Mbuto 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 Mbuto to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Mbuto did not reply to that correspondence.

[5] 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.

[6] 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.

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

[8] 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.

[9] 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

The Federal Court of Australia heard an application by Germaine Mbuto against Hans Continental Smallgoods Pty Ltd, trading as Primo Hans Queensland, for relief from an unfair dismissal. Mbuto, an employee of Primo Hans Queensland, sought to have the dismissal deemed unfair on the grounds that it was not genuine, as he claimed he was dismissed due to his race. The case involved the interpretation of the Fair Work Act 2009 and the assessment of whether the employer's actions were consistent with the principles of procedural fairness and the absence of discriminatory intent.

The legal issues that the court had to address included whether the dismissal was justified under the provisions of the Fair Work Act, and whether there was a discriminatory motive behind the dismissal. The central question was whether Primo Hans Queensland could prove that the dismissal was not harsh, unjust or unreasonable, and that it had followed a fair procedure. Additionally, the court needed to determine if the employer's reasons for dismissal were genuine and not a pretext for racial discrimination.

In examining these issues, the court looked at the evidence provided by both parties, including witness testimonies and the employer's rationale for the dismissal. The court found that Primo Hans Queensland had provided sufficient evidence to show that the dismissal was based on legitimate reasons, specifically due to Mbuto's failure to attend work and respond to communication. The court also considered the procedural fairness and concluded that Primo Hans Queensland had followed appropriate processes in reaching its decision. Consequently, the court determined that the dismissal was not unfair and dismissed Mbuto's application.

As a result of the court's decision, the application for relief from unfair dismissal was dismissed, and no further orders were made.

Germaine Mbuto v Hans Continental Smallgoods Pty Ltd T/A Primo Hans Queensland

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established