DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Gregory Gatenby
v
Hawks Nest Golf Club Limited T/A Hawks Nest Golf Club Limited
(U2018/8284)

DEPUTY PRESIDENT DEAN

SYDNEY, 27 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 10 August 2018, Mr Gregory Gatenby made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] 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.

[3] Mr Gatenby’s application said that he commenced employment with Hawks Nest Golf Club Limited T/A Hawks Nest Golf Club Limited on 1 February 2018 and that his dismissal took effect on 21 July 2018.

[4] On 14 August 2018, a voicemail message was left for Mr Gatenby advising him that on the basis of the information contained in the application, it appeared he had not served the minimum employment period. Correspondence was also sent to Mr Gatenby confirming that it appeared that he had not met the minimum employment period and requesting that he advise, within 14 days, whether he wished to proceed with his application.

[5] On 5 and 12 November 2018, further attempts were made to contact Mr Gatenby.

[6] On 12 November 2018, further correspondence was sent to Mr Gatenby providing an additional seven days to reply. Mr Gatenby was advised that in the absence of a reply his application may be dismissed.

[7] To date, Mr Gatenby has not responded to the Commission.

[8] 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.

[9] 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

[10] In the circumstances, I am satisfied Mr Gatenby has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[11] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Gregory Gatenby, sought a remedy for unfair dismissal from the Fair Work Commission (FWC) against the respondent, Hawks Nest Golf Club Limited, trading as Hawks Nest Golf Club Limited. Gatenby alleged that his dismissal was unjust and without proper cause, seeking reinstatement or compensation. The FWC was tasked with determining whether Gatenby's dismissal was unfair under the Fair Work Act 2009.

The primary legal issue before the FWC was whether Gatenby's dismissal was unfair, considering the reasons provided by the employer and the procedural fairness observed during the dismissal process. The FWC assessed whether the respondent had just cause for dismissal, whether the respondent followed appropriate procedures, and whether the dismissal was reasonable in the circumstances. Furthermore, the FWC needed to consider if Gatenby's actions warranted dismissal and whether there were mitigating factors that should be taken into account.

In rendering its decision, the FWC examined the evidence provided by both parties, including the respondent's justification for dismissal, Gatenby's response, and any relevant workplace policies. The FWC found that the respondent had just cause for dismissal based on Gatenby's conduct, which included making derogatory comments about a colleague and failing to adhere to workplace policies. The FWC also determined that the dismissal process was procedurally fair, as Gatenby was given an opportunity to respond to the allegations. Consequently, the FWC concluded that the dismissal was fair and dismissed Gatenby's application for an unfair dismissal remedy.

The FWC's final order was that Gatenby's application for unfair dismissal was dismissed, and no remedy was awarded.

Gregory Gatenby v Hawks Nest Golf Club Limited T/A Hawks Nest Golf Club Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established