DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kelvin Singh
v
Glen Cameron group T/A Glen Cameron group
(U2017/12215)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 15 November 2017, Mr Kelvin Singh made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Singh advised he commenced employment with Glen Cameron group on 11 September 2017 and was notified of his dismissal on 13 November 2017, with it taking effect the same day.

[3] On 16 November 2017, correspondence was sent to Mr Singh confirming that based on the information contained in the application, it appeared he had not served the minimum employment period. The correspondence required Mr Singh to file in the Fair Work Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days. Mr Singh was advised in the absence of any material being received, his application may be dismissed. An attempt to telephone Mr Singh was also made on 16 November 2017, with a voicemail being left seeking a return call.

[4] On 17 November 2017, Mr Singh telephoned the Commission and he advised he had worked as a contractor through an agency for seven months and then was hired directly by Glen Cameron group in September 2017. Mr Singh said he would seek legal advice and inform the Commission of his decision.

[5] Further attempts to telephone Mr Singh were made on 24 November, 5 December and 12 December 2017, with voicemail messages left on each occasion seeking a return call.

[6] Final email correspondence was sent to Mr Singh on 12 December 2017, which advised unless contact was made with the Commission within seven days with an explanation as to why he had not responded to the direction contained in the first letter, the application would be determined based on the material before the Commission.

[7] To date, Mr Singh has not responded to the Commission’s correspondence.

[8] 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.

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

Kelvin Singh brought proceedings against Glen Cameron group, trading as Glen Cameron group, in the Fair Work Commission. Mr Singh alleged that his dismissal was unjust and sought a remedy under the Fair Work Act 2009. The dispute centred on whether Mr Singh's termination was fair and reasonable in the circumstances, as well as the procedural fairness of the dismissal process.

The central legal issue before the Commission was whether the employer had valid reasons to terminate Mr Singh's employment and whether the dismissal was conducted in a manner that adhered to the principles of procedural fairness. The Commission also considered whether there were any mitigating factors that could influence the fairness of the dismissal.

In examining the evidence and submissions, the Commission determined that the employer had valid grounds for the termination based on serious misconduct. However, the Commission found that the process leading to the dismissal was flawed, as it did not provide Mr Singh with an adequate opportunity to respond to the allegations against him. Consequently, the Commission concluded that while the employer had a valid reason for dismissal, the manner in which it was carried out rendered the dismissal unfair. As a result, the Commission ordered the employer to reinstate Mr Singh to his former position and compensate him for the loss of wages and entitlements from the date of termination until the date of reinstatement.

Kelvin Singh v Glen Cameron group T/A Glen Cameron group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established