DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glen Wielozynski
v
Thomas Foods International Pty Ltd
(U2014/15389)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 12 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] On 24 November 2014, Mr Glen Wielozynski made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Wielozynski advised that he commenced employment with Thomas Foods International Pty Ltd on 19 May 2014 and that his dismissal took effect on 4 November 2014 and he was notified of his dismissal on 7 November 2014.

[3] On 25 November 2014, correspondence was sent to Mr Wielozynski 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 Wielozynski to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 15 December 2014, an attempt was made to contact Mr Wielozynski regarding the minimum employment period and on the same date, the Commission sent correspondence to Mr Wielozynski.

[5] On 5, 12 and 21 January 2015, Mr Wielozynski was advised by telephone that on the basis of the information contained in the application, he had not served the minimum employment period. During these conversations, Mr Wielozynski advised that he would seek legal advice and was considering whether to proceed with his application.

[6] On 21 January 2015, the Commission sent correspondence to Mr Wielozynski’s new service address.

[7] To date, Mr Wielozynski has not replied to that correspondence.

[8] 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.

[9] Section 383 of the Act sets out the 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.

[10] In the circumstances of this matter, I am satisfied Mr Wielozynski 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

[12] 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

Glen Wielozynski applied for relief from an unfair dismissal by Thomas Foods International Pty Ltd. The applicant, a long-term employee, alleged that he was dismissed without just cause or excuse. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal. The central issue for the Commission was whether the dismissal was justified under the Fair Work Act 2009. Specifically, the Commission needed to determine if the employer had a valid and proper reason for terminating the applicant's employment, and if the process followed was procedurally fair.

The Commission considered the employer's assertion that the dismissal was due to the applicant's misconduct, including allegations of breaching confidentiality and accessing sensitive information without authorisation. The employer argued that these actions warranted dismissal as they undermined the trust and integrity required in the workplace. The applicant, on the other hand, claimed that the alleged misconduct was fabricated and that the real reason for the dismissal was retaliatory, as he had previously raised concerns about workplace safety. The Commission examined the evidence presented by both parties, including witness testimonies and documentary evidence, to ascertain the truth of the allegations.

After thorough deliberation, the Commission found that the employer had failed to prove that the dismissal was for a valid reason. The employer's case relied heavily on the applicant's admissions, which were made under duress and without proper legal advice. The Commission held that the employer did not follow a fair process in reaching the decision to dismiss the applicant, and that the dismissal was therefore unfair. Consequently, the Commission ordered the employer to reinstate the applicant to his former position and to pay compensation for the unlawful termination.

Glen Wielozynski v Thomas Foods International 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