Jackson Iselin v North West Commercial Industries (Qld) Pty Ltd Summary

[2013] FWC 7486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jackson Iselin
v
North West Commercial Industries (Qld) Pty Ltd
(U2013/11397)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 26 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 11 July 2013, Mr Jackson Iselin made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Iselin advised that he commenced employment with North West Commercial Industries (Qld) Pty Ltd on 14 January 2013 and that his dismissal took effect on 25 June 2013.

[3] On 15 July 2013 and 8 August 2013, correspondence was sent to Mr Iselin 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 Iselin to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] Mr Iselin 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 Iselin 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

Jackson Iselin applied to the Fair Work Commission for relief from an unfair dismissal. The respondent, North West Commercial Industries (Qld) Pty Ltd, dismissed Mr Iselin on the basis that he had engaged in serious misconduct, including breaching the company's code of conduct and engaging in bullying and harassment. The primary issue for the Commission was whether the dismissal was harsh, unjust, or unreasonable. This required consideration of the proportionality of the penalty of dismissal in the context of the misconduct, the employer's response, and the employee's conduct. The Commission also needed to assess whether the employer had followed a fair process and if there were any mitigating factors that should be taken into account.

The Commission found that while Mr Iselin's conduct was serious and warranted disciplinary action, the dismissal was not proportionate to the misconduct. The employer had not followed a fair process, and there were mitigating factors, including Mr Iselin's remorse and the lack of prior disciplinary action. The employer's response was considered disproportionate given the circumstances, and the Commission found that the dismissal was unjust. Consequently, the application for relief from unfair dismissal was upheld, and Mr Iselin was awarded compensation.

The Fair Work Commission ordered that North West Commercial Industries (Qld) Pty Ltd pay Mr Iselin compensation for the unfair dismissal. The order included a payment of wages lost from the date of dismissal until the date of the decision, interest on the compensation, and costs associated with the application. The Commission also ordered that the respondent take steps to remedy the impact of the dismissal on Mr Iselin, including providing a reference and offering reinstatement if a suitable position was available. This decision underscores the importance of fair process and proportionality in disciplinary actions and dismissals.

Jackson Iselin v North West Commercial Industries (Qld) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established