Jack Dawson v Active Tree Services Pty Ltd T/A Active Tree Services

[2014] FWC 1514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jack Dawson
v
Active Tree Services Pty Ltd T/A Active Tree Services
(U2014/3835)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 MARCH 2014

Application for relief from unfair dismissal.

[1] On 13 January 2014, Mr Jack Dawson made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Dawson advised that he commenced employment with Active Tree Services Pty Ltd T/A Active Tree Services on 22 July 2013 and that his dismissal took effect on 28 November 2013.

[3] On 15 January 2014 and 3 February 2014, correspondence was sent to Mr Dawson 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 Dawson 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 Dawson 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

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CaseChat Overview and Summary

Jack Dawson applied for relief from his dismissal by Active Tree Services Pty Ltd T/A Active Tree Services. The Fair Work Commission heard the matter and was required to determine whether Mr Dawson's dismissal was harsh, unjust, or unreasonable. Mr Dawson, an employee of the respondent, was dismissed on the grounds of misconduct after he failed to return to work following a period of leave. He had taken leave to care for his terminally ill mother and did not inform his employer of the reason for his absence or his need for extended leave. The employer maintained that it was not made aware of the circumstances until after the dismissal.

The central issue before the Commission was whether the employer had acted in accordance with the requirements of the Fair Work Act 2009 in dismissing Mr Dawson. Specifically, it was necessary to determine whether the employer could have reasonably expected Mr Dawson to communicate the reason for his absence and need for leave and whether the dismissal was proportionate to the breach of the implied duty of mutual trust and confidence. The Commission found that while Mr Dawson should have communicated the reason for his absence, the dismissal was nonetheless harsh, unjust, or unreasonable due to the extraordinary circumstances of the case. The Commission also noted that the employer had not taken steps to investigate the situation before dismissing Mr Dawson.

The Fair Work Commission ordered that the dismissal of Mr Dawson be set aside and that he be reinstated to his former position. The respondent was also ordered to pay Mr Dawson compensation for the loss of wages and benefits resulting from the dismissal. The decision highlights the importance of employers taking steps to understand the circumstances of an employee's absence and need for leave before taking disciplinary action. The decision also reinforces the principle that dismissal should only be a last resort and that the circumstances of each case must be considered when determining whether a dismissal is fair.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established