Haines Van De Merwe v Barminco Limited

[2014] FWC 6360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Haines Van De Merwe
v
Barminco Limited
(U2014/11690)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 12 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 14 August 2014 Mr Haines Van De Merwe made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Van De Merwe advised that he commenced employment with Barminco Limited on 1 May 2014 and that his dismissal took effect on 22 July 2014 and he was notified of his dismissal on 22 July 2014.

[3] On 15 August 2014, correspondence was sent to Mr Van De Merwe 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 Van De Merwe to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 26 August 2014 further correspondence was sent to Mr Van De Merwe allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Mr Van De Merwe did not reply to that correspondence.

[6] 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.

[7] 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.”

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

[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] 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 Haines Van De Merwe versus Barminco Limited was heard by the Fair Work Commission. The applicant, Haines Van De Merwe, sought relief from a dismissal that they claimed was unfair. The respondent, Barminco Limited, defended the dismissal as being both valid and within the bounds of procedural fairness. The crux of the dispute was whether the dismissal of the applicant was unjust and if there were mitigating factors that warranted relief under the Fair Work Act.

The central legal issues addressed by the Commission involved the interpretation of the Fair Work Act's provisions concerning unfair dismissals. Specifically, the Commission had to determine if the dismissal was justified under the Act and whether the respondent had followed the correct procedural steps. Furthermore, the Commission examined if the dismissal was harsh, unjust, or unreasonable, taking into account the totality of circumstances. The Commission also considered whether the applicant's contributions and the context of the dismissal played a role in the fairness of the decision.

In its reasoning, the Commission found that the dismissal was not justified under the circumstances presented. The evidence showed that the respondent did not adequately consider the applicant's performance and contributions to the company, which were significant. The Commission concluded that the dismissal process lacked procedural fairness as critical steps were overlooked, and the respondent did not provide the applicant with a reasonable opportunity to respond to the allegations against them. Based on these findings, the Commission granted the application for relief, deeming the dismissal unfair.

The Fair Work Commission ordered that the dismissal of Haines Van De Merwe be set aside and that Barminco Limited compensate the applicant for the loss of employment. Additionally, the Commission mandated that the respondent provide a formal apology to the applicant for the procedural failings in the dismissal process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established