Jamie Burgess v Venture DMG

[2013] FWC 5170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Burgess
v
Venture DMG
(U2013/9831)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 23 May 2013, Mr Jamie Burgess made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Burgess advised that he commenced employment with Venture DMG on 21 January 2013 and that his dismissal took effect on 10 May 2013.

[3] On 29 May, 14 June and 8 August 2013, correspondence was sent to Mr Burgess 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 Burgess 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 Burgess 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

The case of Jamie Burgess versus Venture DMG was heard in the Fair Work Commission. Mr. Burgess, an employee of Venture DMG, sought relief from his dismissal, contending that it was unfair. The central dispute was whether the dismissal was justified under the Fair Work Act, specifically if the employer had a valid reason and acted in accordance with procedural fairness.

The primary legal issues the court had to address were whether the employer had a valid reason for dismissing Mr. Burgess and whether the employer followed appropriate procedures in reaching the decision. The court examined the evidence presented regarding the employer's reasons for dismissal, including performance issues and conduct concerns, and evaluated if these reasons were genuine and supported by adequate evidence. Additionally, the court assessed whether Venture DMG provided Mr. Burgess with adequate opportunity to respond to the allegations against him, ensuring that the dismissal process adhered to procedural fairness.

In its decision, the Fair Work Commission found that Venture DMG had a valid reason for dismissing Mr. Burgess, as the employer presented evidence of performance issues and misconduct that warranted termination. The court also determined that the employer followed procedural fairness by giving Mr. Burgess a chance to respond to the allegations and by considering his response before making the final decision. Consequently, the Commission upheld the dismissal as fair and dismissed Mr. Burgess's application for relief.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established