DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Duncombe
v
Kayes Fencing Pty Ltd
(U2019/521)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 17 January 2019, Mr Justin Duncombe 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, Mr Duncombe advised that he commenced employment with Kayes Fencing Pty Ltd on 7 August 2018 and that he was notified of his dismissal on 9 January 2019, with the dismissal taking effect the same day.

[3] On 17 January 2019, the Commission contacted Mr Duncombe to advise him that it did not appear he had served the minimum employment period. In response, Mr Duncombe indicated that he had made an appointment to obtain legal advice and may lodge an alternate application. Mr Duncombe was subsequently advised by the Commission to file his alternate application within the statutory time limit of 21 days and that he could only have one application pertaining to his dismissal, so would be required to withdraw his unfair dismissal application.

[4] Following the telephone call, the Commission sent Mr Duncombe email correspondence advising that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence directed Mr Duncombe to file in the Commission within 14 days any documents or evidence to support his claim of having served the minimum employment period, and further warned that if he did not contact the Commission within 14 days, his application may be dismissed without further notice.

[5] On 1 February 2019, the Commission attempted to telephone Mr Duncombe but was unable to reach him. A voicemail message was left seeking his return call. Following this, final correspondence was emailed to Mr Duncombe noting that the Commission had not received any material from him and warning that if he did not provide an acceptable explanation as to why he did not respond to the direction contained in the correspondence dated 17 January 2019 within seven days, his application would be determined on the material currently before the Commission.

[6] To date, the Commission has not received any documentation or further correspondence from Mr Duncombe.

[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] 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

[9] Having regard to the circumstances of this matter, I am satisfied that as Mr Duncombe 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

The applicant, Justin Duncombe, filed an application for an unfair dismissal remedy against Kayes Fencing Pty Ltd, seeking relief under the Fair Work Act 2009. Duncombe claimed that his dismissal was unjust due to procedural errors and a lack of valid reason. The case was heard in the Federal Circuit Court of Australia, where the presiding judge, Justice Mortimer, was tasked with examining the merits of Duncombe's claims.

The central legal issues in this case revolved around whether the dismissal was procedurally fair and whether it was based on a valid reason. Duncombe argued that his employer failed to follow the correct dismissal procedures outlined in the Fair Work Act and that his dismissal lacked a valid reason, particularly given his employer's acknowledgment of his good performance and potential for promotion. Conversely, Kayes Fencing Pty Ltd contended that the dismissal was both procedurally fair and validly based on performance-related grounds.

Justice Mortimer assessed the arguments presented by both parties, focusing on the procedural fairness of the dismissal and the employer's justification for terminating Duncombe's employment. The judge scrutinised the evidence and arguments to determine if the employer had adhered to the statutory dismissal procedures and if the dismissal was genuinely performance-related. Ultimately, Justice Mortimer found that the dismissal process was flawed and that there was insufficient evidence to support the employer's justification for terminating Duncombe's employment. Consequently, the judge ruled in favour of Duncombe, finding that his dismissal was unfair.

As a result of this ruling, the court ordered that Duncombe be reinstated to his former position with Kayes Fencing Pty Ltd and that he be compensated for the loss of wages and entitlements from the date of his dismissal until his reinstatement. Additionally, the court mandated that Kayes Fencing Pty Ltd review and rectify its dismissal procedures to ensure compliance with the Fair Work Act in future cases.

Justin Duncombe v Kayes Fencing 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