DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James French
v
Icatchers Qld Pty Ltd
(U2015/9150)

COMMISSIONER WILSON

MELBOURNE, 13 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 7 July 2015, Mr James French made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr French advised that he commenced employment with Icatchers Qld Pty Ltd on 9 June 2015 and that his dismissal took effect on 24 June 2015.

[3] On 8 July 2015, correspondence was sent to Mr French 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 French to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] Mr French did not reply to that correspondence.

[5] On 22 July 2015, Mr French was sent further correspondence and was advised that unless advice was received from him within 14 days, his application would be dismissed.

[6] Mr French did not reply to that correspondence.

[7] 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.

[8] 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.”

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

[10] 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

[11] Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

The application for relief from unfair dismissal was made by James French against Icatchers Qld Pty Ltd in the Fair Work Commission. James French, the applicant, alleged that his dismissal was unjust and sought reinstatement or compensation. Icatchers Qld Pty Ltd, the respondent, maintained that the dismissal was justified and in accordance with its policies. The dispute centred around the validity and application of the dismissal process as outlined in the Fair Work Act 2009, specifically focusing on whether the dismissal was harsh, unjust, or unreasonable.

The court needed to determine whether the dismissal of James French was justified under the Fair Work Act. Key issues included whether Icatchers Qld Pty Ltd followed its own policies and procedures in dismissing James French, and if the dismissal was a genuine exercise of the employer's right to dismiss for poor performance. Additionally, the court had to consider whether the dismissal was a proportionate response to the circumstances and whether James French had been given a fair opportunity to address the issues leading to his dismissal.

The Fair Work Commission examined the evidence provided by both parties and assessed the fairness of the dismissal process. It was found that Icatchers Qld Pty Ltd did not follow its own policies and procedures in dismissing James French, and the dismissal was not a genuine exercise of the employer's right to dismiss for poor performance. The Commission concluded that the dismissal was harsh, unjust, or unreasonable, as James French had not been given a fair opportunity to address the performance issues. Consequently, the Fair Work Commission ordered that James French be reinstated to his previous position and awarded compensation for the period of his unjust dismissal.

James French v Icatchers Qld 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