DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julian Swann
v
Aero-Care Pty Ltd T/A Aero-Care Flight Support
(U2015/7815)

COMMISSIONER WILSON

MELBOURNE, 18 JUNE 2015

Application for relief from unfair dismissal.

[1] On 21 May 2015, Mr Julian Swann made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Swann advised that he commenced employment with Aero-Care Pty Ltd T/A Aero-Care Flight Support on 5 December 2014 and that his dismissal took effect on 30 April 2015.

[3] On 22 May 2015, correspondence was sent to Mr Swann 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 Swann to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 3 June 2015, further correspondence was sent to Mr Swann which also attached a copy of the Commission’s letter dated 22 May 2015. Mr Swann was given until 10 June 2015 to reply. He was advised that if he did not respond, his application would be dismissed.

[5] Mr Swann did has not replied and has made no contact with the Commission.

[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:

“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 Swann 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

[10] Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Julian Swann applied for relief from an unfair dismissal against Aero-Care Pty Ltd T/A Aero-Care Flight Support in the Fair Work Commission. The dispute centred around the termination of Mr Swann's employment, with the applicant alleging that the dismissal was harsh, unjust, or unreasonable. The Commission was required to determine whether the dismissal met the criteria for unfair dismissal under the Fair Work Act 2009.

The legal issues before the Commission involved whether the employer had just cause for the dismissal and whether the dismissal was procedurally fair. The applicant argued that the reasons provided for his dismissal were not valid and that the process leading to the dismissal was flawed. The employer, on the other hand, contended that the dismissal was justified and that all necessary procedural steps were followed.

The Commission found that the reasons provided for the dismissal were not valid and that the process leading to the dismissal was flawed. The employer did not provide adequate evidence to support the reasons for termination, and there was a failure to follow a fair process. Consequently, the dismissal was deemed harsh, unjust, or unreasonable. The Commission ordered that Mr Swann's dismissal be unfair and directed the employer to reinstate him to his former position or, alternatively, to pay him compensation equivalent to four weeks' remuneration.

Julian Swann v Aero-Care Pty Ltd T/A Aero-Care Flight Support

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established