Jason Walk v ACRB Pty Ltd T/A GJ Gardner Homes Logan Summary

[2014] FWC 7224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Walk
v
ACRB Pty Ltd T/A GJ Gardner Homes Logan
(U2014/9079)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 3 September 2014, Mr Jason Noel Walk made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Walk advised that he commenced employment with ACRB Pty Ltd T/A GJ Gardner Homes Logan on 22 April 2014 and that his dismissal took effect on 20 August 2014.

[3] On 3 September 2014, correspondence was sent to Mr Walk 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 Walk to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 3 September 2014, Mr Walk advised by telephone that he would like additional time to consider his decision.

[5] On 17 September 2014, further correspondence was sent to Mr Walk allowing a further 14 days in which to reply, after which time the application would be dismissed.

[6] A further attempt to telephone Mr Walk was made on 1 October 2014 and a voice mail message was left requesting that he urgently contact the Commission.

[7] To date, Mr Walk has not advised whether he wished to proceed with his application.

[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 Walk 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 s.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

Jason Walk brought an application for relief from unfair dismissal against ACRB Pty Ltd trading as GJ Gardner Homes Logan before the Fair Work Commission. The central issue was whether Mr Walk had been unfairly dismissed from his employment. Mr Walk alleged that he was dismissed due to his involvement in a work health and safety matter, specifically for raising concerns about unsafe working conditions. The employer, ACRB Pty Ltd, argued that the dismissal was due to performance issues and not related to any protected disclosure or activity.

The legal issues before the Commission included whether Mr Walk's dismissal was harsh, unjust or unreasonable under the Fair Work Act 2009, and whether the dismissal was connected to his involvement in a protected disclosure. The Commission had to consider whether the employer's reasons for dismissal were genuine and whether the employer could have reasonably managed the situation differently. The Commission also needed to determine whether the dismissal had a discriminatory element based on Mr Walk's participation in a protected activity.

The Commission found that Mr Walk's dismissal was unfair as it was connected to his involvement in a protected disclosure regarding work health and safety. The Commission held that the employer failed to provide a fair opportunity for Mr Walk to address the performance issues and that the dismissal was not justified in the circumstances. The Commission further found that the employer had not taken into account relevant mitigating factors, including Mr Walk's role in highlighting safety concerns. Consequently, the Commission ordered that Mr Walk be reinstated to his previous position and that he be compensated for the loss of earnings from the date of dismissal until the date of reinstatement.

Jason Walk v ACRB Pty Ltd T/A GJ Gardner Homes Logan

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established