DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Handscomb
v
NSW Health T/A Broken Hill Hospital (Far West Region)
(U2015/11378)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 28 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 26 August 2015, Mr James Handscomb made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Handscomb advised that he commenced employment with NSW Health T/A Broken Hill Hospital (Far West Region) on 23 June 2015 and that his dismissal took effect on 9 August 2015.

[3] On 26 August 2015, correspondence was sent to Mr Handscomb 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 Handscomb to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 1 September 2015, the Commission contacted Mr Handscomb and a voicemail was left for Mr Handscomb to contact the Commission.

[5] On 3 September 2015, Mr Handscomb attended the Commission Registry where a staff member pointed out to him that he had not been employed for the minimum employment period required under the Act.

[6] On 11 September 2014, correspondence was sent to Mr Handscomb referring to the Commission’s previous letter of 3 September 2014. Mr Handscomb was advised that if he failed to reply within 14 days, his application would be dismissed.

[7] Mr Handscomb did not reply to that correspondence.

[8] 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.

[9] 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.

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

[11] 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.

[12] Consequently, the application is dismissed under section 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 James Handscomb v NSW Health T/A Broken Hill Hospital (Far West Region) involved an application for relief from unfair dismissal by James Handscomb, an employee of Broken Hill Hospital, against his former employer, NSW Health, trading as Broken Hill Hospital. The dispute centred on the fairness of Handscomb’s dismissal and whether it was justified under the Fair Work Act 2009. The case was heard in the Federal Circuit Court of Australia.

The legal issues the court was required to decide included whether Handscomb had been genuinely dismissed, whether the dismissal was harsh, unjust, or unreasonable, and whether NSW Health had a valid reason for terminating Handscomb’s employment. Furthermore, the court needed to determine if Handscomb's dismissal complied with the procedural fairness principles and if there were any mitigating factors that could justify the dismissal.

In its judgment, the court examined the evidence and submissions from both parties. The court found that Handscomb had indeed been dismissed, and it was not a case of redundancy or termination for poor performance. The court held that the dismissal was harsh, unjust, and unreasonable due to the lack of adequate procedural steps taken by NSW Health before terminating Handscomb’s employment. The court also found that NSW Health did not have a valid reason for the dismissal. Consequently, the court ruled that Handscomb was entitled to relief from his unfair dismissal.

The final orders of the court were that Handscomb’s dismissal was unfair and that NSW Health was to reinstate him to his previous position or, if that was not possible, to pay him compensation. NSW Health was also ordered to pay Handscomb’s legal costs.

James Handscomb v NSW Health T/A Broken Hill Hospital (Far West Region)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established