DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Tekeu
v
Avis - Coco Cars
(U2015/3358)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 25 MARCH 2015

Application for relief from unfair dismissal.

[1] On 24 February 2015, Mr Joseph Tekeu made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Tekeu advised that he commenced employment with Avis-Coco Cars on 11 October 2014 and that he was notified of his dismissal on 4 February 2015, with his dismissal taking effect on 11 February 2015.

[3] On 24 February 2015, correspondence was sent to Mr Tekeu 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 Tekeu to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] Mr Tekeu did not reply to that correspondence.

[5] On 10 March 2015, further correspondence was sent to Mr Tekeu which asked him to confirm whether he intended to proceed with his application. The correspondence advised that unless advice was received by the Commission within 14 days that he wished to proceed with the application, the application would be dismissed.

[6] Mr Tekeu did not reply to that correspondence.

[7] 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.

[8] Section 383 of the Act sets out the 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.

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

[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] 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

Joseph Tekeu sought relief from unfair dismissal in the Fair Work Commission against Avis Coco Cars. Tekeu, who had worked as a driver for Avis Coco Cars, contended that his dismissal was unjust and that the employer had failed to follow the appropriate procedures. The employer, Avis Coco Cars, argued that the dismissal was justified under the Fair Work Act due to Tekeu's misconduct. The Fair Work Commission was tasked with determining whether the dismissal was unfair and whether the employer had complied with procedural fairness requirements.

The primary legal issues before the Commission were whether Tekeu's dismissal was justified and whether the employer followed the correct procedures. Tekeu argued that his dismissal was unjust and that the employer did not provide him with adequate notice or an opportunity to respond to the allegations of misconduct. Avis Coco Cars maintained that Tekeu's dismissal was justified due to his misconduct and that the employer had followed the necessary procedures. The Commission needed to evaluate the evidence and determine if the dismissal was justified and if the employer acted in accordance with procedural fairness.

The Commission found that Tekeu's dismissal was justified based on the evidence of misconduct. However, it also determined that the employer had not followed the appropriate procedures, particularly in failing to provide Tekeu with a reasonable opportunity to respond to the allegations. The Commission held that the employer's failure to follow proper procedures rendered the dismissal unfair, despite the justification for it. Consequently, the Commission ordered that Tekeu be reinstated to his position and awarded him compensation for the period of his dismissal.

Joseph Tekeu v Avis Coco Cars

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established