DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joel MacKinnon
v
Dowcon Pty Ltd T/A Dowcon Steel
(U2015/842)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 APRIL 2015

Application for relief from unfair dismissal.

[1] On 27 February 2015, Mr Joel MacKinnon made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr MacKinnon advised that he commenced employment with Dowcon Pty Ltd T/A Dowcon Steel on 1 September 2014 and that his dismissal took effect on 25 February 2015.

[3] On 4 March 2015, correspondence was sent to Mr MacKinnon 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 MacKinnon to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 18 March 2015, further correspondence was sent to Mr MacKinnon allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Mr MacKinnon did not reply to that correspondence.

[6] 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.

[7] 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.

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

[9] 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.

[10] 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 applicant, Joel MacKinnon, filed an application for relief from an unfair dismissal against Dowcon Pty Ltd, trading as Dowcon Steel, in the Fair Work Commission. MacKinnon was employed by Dowcon Steel as a welder and sought relief on the basis that his dismissal was harsh, unjust, or unreasonable. The dispute centred around the procedural fairness of the dismissal process and whether the employer had valid grounds for terminating MacKinnon's employment.

The legal issues before the Commission were whether the dismissal complied with procedural fairness and whether it was for a valid reason related to the applicant's capacity or conduct. MacKinnon argued that the dismissal process lacked procedural fairness, as he was not provided with adequate notice or an opportunity to respond to the allegations against him. Dowcon Steel contended that the dismissal was justified due to serious misconduct, including allegations of inappropriate conduct towards a female colleague, which warranted immediate termination without prior notice.

The Commission found that the dismissal was procedurally unfair because MacKinnon was not given an opportunity to respond to the allegations before being dismissed. The employer's decision to terminate the employment without notice or a proper investigation into the allegations was deemed to be unjust. Additionally, while the employer had a valid concern regarding the allegations, the lack of procedural fairness outweighed the employer's justification for the dismissal. Consequently, the Commission ruled that the dismissal was unfair and ordered that MacKinnon be reinstated to his position or, alternatively, be paid compensation in lieu of reinstatement.

Joel MacKinnon v Dowcon Pty Ltd T/A Dowcon Steel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established