Jeffrey Walton v Pig & Whistle Tavern Summary

[2014] FWC 1122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeffrey Walton
v
Pig & Whistle Tavern
(U2013/17102)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 5 December 2013, Mr Jeffrey Walton made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Walton advised that he commenced employment with Pig & Whistle Tavern on 11 November 2013 and that his dismissal took effect on 28 November 2013.

[3] On 10 December 2013 and 9 January 2014, correspondence was sent to Mr Walton 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 Walton 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 Walton 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

Printed by authority of the Commonwealth Government Printer

The applicant, Jeffrey Walton, sought relief from an unfair dismissal from the Pig & Whistle Tavern. The matter was heard in the Fair Work Commission. Mr Walton contended that his dismissal was unfair due to procedural flaws in the termination process and that it was effectively for an invalid reason.

The primary legal issues before the Commission were whether Mr Walton's dismissal was procedurally unfair and whether it was for a valid reason. The Commission needed to assess if the employer followed the correct procedures in terminating Mr Walton's employment and whether the reason provided for dismissal was justified. The Commission also considered whether the dismissal was proportionate to the alleged misconduct.

The Commission found that the employer did not follow proper procedures in dismissing Mr Walton. The employer failed to provide adequate notice and an opportunity for Mr Walton to respond to the allegations against him. The reason provided for dismissal was also deemed invalid as it was based on insufficient evidence. The Commission concluded that the dismissal was unfair and ordered that Mr Walton be reinstated to his previous position or, alternatively, be paid compensation equivalent to 12 months' remuneration. The employer was also ordered to pay Mr Walton's legal costs.

Jeffrey Walton v Pig & Whistle Tavern

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established