Guy Desfosses v Globe Cafe

[2013] FWC 9526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Guy Desfosses
v
Globe Cafe
(U2013/14240)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 DECEMBER 2013

Application for relief from unfair dismissal.

[1] On 6 October 2013, Mr Guy Desfosses made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Desfosses advised that he commenced employment with Globe Cafe on 11 September 2013 and that his dismissal took effect on 5 October 2013.

[3] On 8 October 2013 and 29 October 2013, correspondence was sent to Mr Desfosses pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Desfosses 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 Desfosses 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 case of Guy Desfosses v Globe Cafe involved an application by Mr Desfosses for relief from an unfair dismissal. The dispute arose from the termination of his employment by Globe Cafe, with Mr Desfosses asserting that the dismissal was unfair under the Fair Work Act. The Fair Work Commission, in this instance acting as the court, was tasked with determining whether the dismissal was unjust and, if so, what remedy was appropriate.

The primary legal issues before the court were whether Globe Cafe had just cause for the dismissal and whether the procedures followed were fair and reasonable. Mr Desfosses argued that his dismissal was without valid reason and that the process was not conducted in accordance with the principles of natural justice. Conversely, Globe Cafe maintained that the dismissal was justified due to serious misconduct on the part of Mr Desfosses and that the appropriate procedural steps were taken.

The Fair Work Commission, after considering the evidence and submissions from both parties, found that the dismissal was indeed unjust. The Commission held that the employer failed to provide sufficient evidence to support the grounds of misconduct and that the process leading to the dismissal did not meet the standards of procedural fairness. Consequently, the application for relief from unfair dismissal was granted, and the Commission ordered reinstatement and compensation for lost earnings.

This decision underscores the importance of substantiating dismissal claims with robust evidence and adherence to fair procedures. The outcome also highlights the potential consequences for employers who fail to meet these standards, as illustrated by the reinstatement order and compensation awarded to Mr Desfosses.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established