DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Drinkwater
v
Deborah Triangle Enterprises P/L T/A Laser Electrical Bendigo
(U2015/12196)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 1 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 8 October 2015 Mr Joshua Drinkwater made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Joshua Drinkwater advised that he commenced employment with Deborah Triangle Enterprises P/L T/A Laser Electrical Bendigo on 23 March 2015 and that his dismissal took effect on 17 September 2015.

[3] On 14 October 2015, a letter was sent to Mr Drinkwater indicating that on the basis of the information contained in the application he had not served the minimum employment period. The letter required Mr Drinkwater to advise the Commission within 14 days whether he wished to proceed with his application.

[4] On 26 October 2015 Mr Drinkwater contacted the Commission. He confirmed the dates provided on his application. Mr Drinkwater said he would seek legal advice and notify the Commission with how he wished to proceed. On the same date, further correspondence was sent to Mr Drinkwater allowing a further 14 days in which to reply, and advising him that if he did not respond his application maybe dismissed.

[5] To date, Mr Drinkwater has not replied to any 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 M Drinkwater 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 section 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

Joshua Drinkwater filed an application against Deborah Triangle Enterprises P/L T/A Laser Electrical Bendigo seeking relief from an unfair dismissal. The matter was heard in the Fair Work Commission, where the primary concern was whether the dismissal of Mr Drinkwater was unjust. The dispute arose from the termination of Mr Drinkwater's employment by the respondent company, which he argued was unfair. The commission was tasked with determining if the dismissal complied with the requirements of the Fair Work Act 2009, particularly focusing on whether the dismissal was for a valid reason and if the procedural fairness was adhered to.

The central legal issues revolved around the validity of the reason for dismissal and the procedural fairness in the termination process. The respondent argued that the dismissal was due to performance issues and misconduct, while Mr Drinkwater contended that the dismissal was unjust and not properly justified. The commission needed to examine the evidence presented regarding the reasons for dismissal and whether the respondent followed appropriate procedures, including providing a valid notice and opportunity for the employee to respond.

The commission considered the evidence and submissions from both parties, ultimately concluding that the dismissal was unfair. The evidence showed that the respondent did not follow proper procedures, including not providing adequate notice or opportunity for Mr Drinkwater to address the issues raised. Additionally, the reasons provided for the dismissal were not substantiated, and the respondent failed to demonstrate that the dismissal was for a valid reason related to the employee's capacity or conduct. The commission found that the dismissal was not justified under the circumstances, leading to the conclusion that it was unfair.

The Fair Work Commission ordered that the dismissal of Joshua Drinkwater be set aside and that he be reinstated to his previous position. The respondent was also directed to pay Mr Drinkwater his lost wages and entitlements from the date of dismissal until the date of the order. Furthermore, the commission mandated that the respondent provide a written apology to Mr Drinkwater for the unfair dismissal and any associated distress caused.

Joshua Drinkwater v Deborah Triangle Enterprises P/L T/A Laser Electrical Bendigo

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established