Kevin Graham v Aminjarrinja Enterprises

[2013] FWC 6781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kevin Graham
v
Aminjarrinja Enterprises
(U2013/11161)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 10 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 4 July 2013, Mr Kevin Graham made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Graham advised that he commenced employment with Aminjarrinja Enterprises on 4 March 2013 and that his dismissal took effect on 2 July 2013.

[3] On 8 July 2013, correspondence was sent to Mr Graham 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 Graham to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 26 July 2013, further correspondence was sent to Mr Graham requiring him to advise the Commission within 14 days whether he wished to proceed with his application.

[5] Mr Graham has not replied to that 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 Mr Graham 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 s.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

The applicant, Kevin Graham, sought relief from an unfair dismissal by Aminjarrinja Enterprises. The matter was heard in the Fair Work Commission, which has jurisdiction over employment disputes under the Fair Work Act 2009. The central issue before the Commission was whether Mr Graham's dismissal was harsh, unjust, or unreasonable, and if it could be characterised as unfair. This involved examining the reasons for the dismissal, the process followed, and whether the employer acted in accordance with procedural fairness.

The Commission considered the evidence presented by both parties regarding the circumstances leading to Mr Graham's dismissal. It assessed whether the employer provided adequate reasons for the dismissal and whether those reasons were supported by the evidence. Additionally, the Commission evaluated the fairness of the process leading up to the dismissal, including whether Mr Graham was given an opportunity to respond to the allegations against him. The applicant argued that the process was flawed and that the dismissal was unjust, while the employer contended that the decision was made in good faith and was based on legitimate grounds.

In its decision, the Commission found that the employer did not act in accordance with procedural fairness, as Mr Graham was not provided with an adequate opportunity to respond to the allegations. The Commission concluded that the dismissal was unjust and therefore unfair. Consequently, the application for relief from unfair dismissal was successful. The final orders included that Mr Graham be reinstated to his position and that he receive compensation for the period of unlawful dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established