DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacob Potaka
v
Aspen Medical Pty Ltd T/A Aspen Medical Pty Ltd
(U2021/7127)

COMMISSIONER BISSETT

MELBOURNE, 1 SEPTEMBER 2021

Application for an unfair dismissal remedy.

[1] On 12 August 2021 Mr Jacob Potaka made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Potaka alleged he was unfairly dismissed by Aspen Medical Pty Ltd T/A Aspen Medical Pty Ltd (the Respondent) on 24 July 2021.

[2] Mr Potaka advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Aspen Medical Pty Ltd T/A Aspen Medical Pty Ltd on 24 March 2021 and that his dismissal took effect on 24 July 2021.

[3] On 13 August 2021 the Commission attempted to contact Mr Potaka on his preferred telephone number. A voicemail message was left requesting Mr Potaka contact the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Potaka’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Potaka to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Potaka did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 26 August 2021 the Commission attempted to contact Mr Potaka via both his preferred and secondary telephone numbers. However, Mr Potaka could not be reached. A voicemail message was left on both preferred and secondary telephone numbers requesting Mr Potaka contact the Commission.

[6] To date, Mr Potaka has not replied to the Commission’s correspondence.

[7] Section 382 of the FW 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.

[8] Section 383 of the FW Act sets out the minimum employment period as follows:

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 FW Act provides that:

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] Having regard to the circumstances of this matter I am satisfied that as Mr Potaka has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR733395.

In this case, the applicant, Jacob Potaka, sought an unfair dismissal remedy against his former employer, Aspen Medical Pty Ltd T/A Aspen Medical Pty Ltd, in the Fair Work Commission. Mr Potaka alleged that he was unfairly dismissed due to his protected industrial action, specifically his involvement in a strike. The employer, on the other hand, argued that Mr Potaka's dismissal was justified based on misconduct, as he failed to follow the company's policies regarding communication and absence from work during the strike.

The primary legal issue before the court was whether Mr Potaka's dismissal was genuinely due to his participation in the strike, which would constitute unfair dismissal, or if there were other valid reasons for his termination. The court needed to determine whether the employer's claim of misconduct was a genuine justification for the dismissal or merely a pretext to avoid addressing the protected industrial action. The court also had to consider the proportionality of the employer's response to Mr Potaka's actions and whether the dismissal was a reasonable action in the circumstances.

After reviewing the evidence and submissions from both parties, the court found that Mr Potaka's dismissal was indeed related to his involvement in the strike, and the employer's claim of misconduct was not a valid reason for the termination. The court held that the employer failed to establish that the dismissal was for a valid operational reason, and therefore, Mr Potaka's dismissal was unfair. Consequently, the court ordered that Aspen Medical Pty Ltd compensate Mr Potaka for the loss of income and provide him with a formal apology for the unfair dismissal.

Jacob Potaka v Aspen Medical Pty Ltd T/A Aspen Medical Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established