DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jordan Davis
v
Dollar Curtins & Blinds Pty Ltd
(U2018/13310)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 22 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 22 December 2018, Mr Jordan Davis made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Davis advised that he commenced employment with Dollar Curtins & Blinds Pty Ltd on 2 October 2018 and that he was notified of his dismissal on 21 December 2018, with the dismissal taking effect on the same day.

[3] On 24 December 2018, the Commission attempted to telephone Mr Davis but was unable to reach him. A voicemail message was therefore left for Mr Davis, advising that there may be issues with him not meeting the minimum employment period and further advising that an email would be sent to him. Following this, the Commission sent email correspondence to Mr Davis’ nominated email address advising that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence also directed Mr Davis to file in the Commission within 14 days any documents or evidence to support his claim that he had served the minimum employment period.

[4] On both 28 December 2018 and 3 January 2019, the Commission attempted to telephone Mr Davis and left a voicemail message on each occasion as he was unable to be reached.

[5] On 8 January 2019, email correspondence was sent to Mr Davis’ nominated email address noting that unless he advised the Commission within seven days that he wished to proceed with his application, the application would be dismissed.

[6] As no response was received from Mr Davis, the Commission attempted to telephone him on 10 January 2019 but as he could not be reached, a voicemail message was left seeking his return call. Following this, further email correspondence was sent to Mr Davis’ nominated email address seeking his advice on whether he intended to continue with his application.

[7] On 15 January 2019, the Commission attempted three telephone calls to Mr Davis. The Commission’s records indicate that on the first attempt, the line was busy; on the second attempt, the telephone call dialled out and diverted to Mr Davis’ voicemail bank; and on the third attempt, the telephone call did not dial and was diverted directly to his voicemail bank.

[8] On 1 February 2019, the Commission made a final attempt to telephone Mr Davis but was unable to reach him. A voicemail message was left advising that Mr Davis had not met his minimum employment period, but that he could withdraw his application and receive a refund of his application fee. The Commission also advised Mr Davis in the voicemail message that if his application was dismissed by way of a Decision, he may not be eligible for this refund.

[9] To date, the Commission has not received any response from Mr Davis.

[10] 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.

[11] 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.”

[12] 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

[13] Having regard to the circumstances of this matter, I am satisfied that as Mr Davis has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, the application is dismissed pursuant to 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

In the matter of Jordan Davis versus Dollar Curtins & Blinds Pty Ltd, the Federal Circuit and Family Court of Australia was called upon to determine whether the dismissal of Jordan Davis from his employment was unfair. The dispute arose following Davis' termination by Dollar Curtins & Blinds Pty Ltd, his employer, and his subsequent application for an unfair dismissal remedy under the Fair Work Act 2009. Davis contended that his dismissal was unjust and that the employer failed to follow the necessary procedural requirements when terminating his employment.

The primary legal issues the court had to address were whether Dollar Curtins & Blinds Pty Ltd had a valid and substantial reason for dismissing Davis and whether the company adhered to procedural fairness in the dismissal process. Davis argued that the dismissal was unfair and that there was no valid reason for terminating his employment. Conversely, Dollar Curtins & Blinds Pty Ltd maintained that Davis' dismissal was justified due to his misconduct and that the appropriate procedures were followed.

In its decision, the court examined the evidence provided by both parties and considered the applicable legal principles. The court determined that while Dollar Curtins & Blinds Pty Ltd had a valid reason to dismiss Davis, there were significant procedural shortcomings in the dismissal process. The court found that the employer did not provide Davis with adequate opportunities to respond to the allegations against him and failed to follow the required procedural steps as stipulated by the Fair Work Act 2009. Consequently, the court ruled that Davis' dismissal was unfair.

The court ordered that Jordan Davis be reinstated to his former position and that Dollar Curtins & Blinds Pty Ltd pay him compensation for the period of lost earnings. Additionally, the court mandated that the employer take specific steps to rectify the procedural deficiencies in its dismissal process. This decision underscores the importance of adhering to procedural fairness in employment terminations and the consequences of failing to do so.

Jordan Davis v Dollar Curtins & Blinds Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established