DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gobinath Sithivinaygam
v
MPE Plastic
(U2020/8730)

COMMISSIONER BISSETT

MELBOURNE, 20 JULY 2020

Application for an unfair dismissal remedy.

[1] On 24 June 2020, Mr Gobinath Sithivinaygam made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Sithivinaygam advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with MPE Plastic on 20 April 2020 and that his dismissal took effect on 7 April 2020 (sic) and he was notified of his dismissal on 7 May 2020.

[3] On 25 June 2020, the Commission attempted to contact Mr Sithivinaygam on his nominated telephone number. A voicemail message was left requesting Mr Sithivinaygam contact the Commission as he had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Mr Sithivinaygam’s nominated email address advising Mr Sithivinaygam that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Sithivinaygam to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also advised that if Mr Sithivinaygam did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] On 8 July 2020, the Commission attempted to contact Mr Sithivinaygam via his nominated telephone number. Mr Sithivinaygam could not be reached. A voicemail message was left requesting Mr Sithivinaygam contact the Commission.

[6] On 9 July 2020, Mr Sithivinaygam filed a completed waiver form by email. The Commission approved the waiver and advised Mr Sithivinaygam by email of same. Mr Sithivinaygam acknowledged receipt of the waiver approval letter.

[7] On 10 July 2020, the Commission again attempted to contact Mr Sithivinaygam by telephone. A voicemail message was left requesting Mr Sithivinaygam contact the Commission.

[8] On 10 July 2020, the Commission sent Mr Sithivinaygam an email referring him to our correspondence of 25 June 2020 and that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Sithivinaygam to file in the Commission any documents/evidence to support his claim that he had served the minimum employment period.

[9] To date, Mr Sithivinaygam has not replied to the Commission’s correspondence.

[10] 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.

[11] Section 383 of the FW Act sets out the minimum employment period as follows:

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.

[12] Section 587(1) of the FW Act provides that:

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

[13] Having regard to the circumstances of this matter I am satisfied that as Mr Sithivinaygam has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Gobinath Sithivinaygam, sought an unfair dismissal remedy against the respondent, MPE Plastic. The applicant was dismissed from his employment as a forklift driver following an incident where he was found to have stolen goods from the workplace. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the applicant's dismissal was justified, taking into account the principles of procedural fairness and the nature of the misconduct.

The Fair Work Commission found that the applicant's conduct constituted serious misconduct. The applicant had stolen goods from the workplace, which was a breach of trust and an act of dishonesty. The Commission considered the nature of the offence and the impact it had on the workplace environment. The respondent had a legitimate interest in maintaining a secure and honest workplace, and the applicant's actions undermined that interest. The Commission found that the respondent had followed a fair process in dismissing the applicant, including providing him with an opportunity to explain his actions and the consequences of his conduct.

As a result, the Fair Work Commission dismissed the applicant's claim for an unfair dismissal remedy. The Commission found that the dismissal was justified, taking into account the seriousness of the misconduct and the respondent's legitimate interest in maintaining a secure and honest workplace. The Commission also noted that the respondent had followed a fair process in dismissing the applicant, including providing him with an opportunity to explain his actions and the consequences of his conduct. The dismissal was therefore upheld as being lawful and fair.

Gobinath Sithivinaygam v MPE Plastic

DECISION

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