DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jarred Russell
v
All Seasons Hotel - Bendigo T/A All Seasons Quality Resort
(U2016/15564)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] On 29 December 2016, Mr Jarred Russell made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Russell advised that he commenced employment with All Seasons Hotel - Bendigo T/A All Seasons Quality Resort on 14 September 2016, or on a day very close to that date, and that his dismissal took effect on 3 December 2016.

[3] On 4 January 2017, following a telephone discussion with Mr Russell, correspondence was sent to him 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 Russell to file in the Fair Work Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days.

[4] On 12 January 2017, the Commission telephoned Mr Russell and left a voicemail seeking a return call. Another telephone call was made on 19 January 2017, however there was no answer and no voicemail was able to be left.

[5] On 19 January 2017, further correspondence was sent to Mr Russell allowing a further seven days in which to reply. Mr Russell was advised that if there was no response, his application would be determined on the material currently before the Commission.

[6] On 6 February 2017, a final attempt to telephone Mr Russell was made, however there was no answer and no voicemail was able to be left.

[7] To date, Mr Russell has not replied to the Commission’s 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] 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.

[11] In the circumstances of this matter, I am satisfied Mr Russell has not completed the required minimum employment period and his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Jarred Russell versus All Seasons Hotel Bendigo Trading As All Seasons Quality Resort, the Fair Work Commission (FWC) was tasked with determining whether the dismissal of Mr. Russell from his employment was unfair. Mr. Russell, the applicant, sought a remedy for what he claimed was an unjust termination. The respondent, All Seasons Hotel Bendigo, defended the decision to terminate Mr. Russell's employment, asserting that it was justified under the applicable laws. The FWC, as the tribunal responsible for resolving such disputes, was called upon to adjudicate the matter.

The central legal issues before the FWC involved the interpretation of the Fair Work Act 2009 and the assessment of the circumstances surrounding Mr. Russell's dismissal. The FWC had to determine whether the respondent's actions were consistent with the procedural requirements set forth in the Act and whether the dismissal was justified by the respondent's evidence. Additionally, the FWC needed to evaluate the proportionality of the dismissal in the context of the overall circumstances of the case.

In delivering its decision, the FWC examined the evidence presented by both parties and considered the relevant legal principles. The FWC found that the respondent did not follow the necessary procedural steps prior to Mr. Russell's dismissal, which was a significant procedural error. Moreover, the FWC concluded that the dismissal was not proportionate to the alleged misconduct. Consequently, the FWC ruled that the dismissal was unfair. The FWC ordered the respondent to reinstate Mr. Russell to his previous position and award him compensation for the period of his unjustified dismissal.

Jarred Russell v All Seasons Hotel Bendigo T/A All Seasons Quality Resort

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established