DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kolawdle Olusegun Taos
v
ABHIS Bread Pty Ltd
(U2021/2509)

COMMISSIONER BISSETT

MELBOURNE, 19 MAY 2021

Application for an unfair dismissal remedy.

[1] On 25 March 2021 Mr Kolawdle Olusegun Taos (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Taos stated he had been unfairly dismissed by ABHIS Bread Pty Ltd (the Respondent) on 12 March 2021.

[2] Mr Taos advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with ABHIS Bread Pty Ltd on 29 February 2021 and that his dismissal took effect on 10 March 2021.

[3] On 26 March 2021 the Commission attempted to contact Mr Taos on his nominated telephone number. The call attempt was not successful, and a generated message advised the number has been disconnected. The option to leave a voicemail message was not available.

[4] Later that day, the Commission emailed correspondence to Mr Taos’s nominated email address advising Mr Taos that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Taos to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Taos did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 8 April 2021 the Commission attempted to contact Mr Taos via his nominated telephone number. However, Mr Taos could not be reached. A voicemail message was left requesting Mr Taos to contact the Commission to confirm his employment period. Mr Taos was advised that the Commission may consider dismissing the application if correspondence was not received by 9 April 2021.

[6] To date, Mr Taos has not replied to the Commission’s correspondence.

[7] Section 382 of the FW 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.

[8] Section 383 of the FW Act sets out the minimum employment period as follows:

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 FW Act provides that:

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] Having regard to the circumstances of this matter I am satisfied that as Mr Taos has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR730001.

The applicant, Kolawdle Olusegun Taos, has applied for an unfair dismissal remedy against his former employer, Abhis Bread Pty Ltd. Mr Taos was dismissed from his position as a bread delivery driver and is contesting the fairness of his dismissal, seeking reinstatement or compensation. The matter was heard in the Fair Work Commission. The central legal issue before the commission was whether the dismissal of Mr Taos was unfair within the meaning of the Fair Work Act 2009. Specifically, the commission had to determine whether the employer had just cause to dismiss Mr Taos, whether Mr Taos was given an opportunity to respond to the allegations against him, and whether the employer followed proper procedural steps. The commission examined the evidence presented by both parties, including the employer's reasons for dismissal, the procedural fairness afforded to Mr Taos, and the context in which the dismissal occurred. The commission found that the employer had not provided sufficient evidence to justify the dismissal on the grounds alleged, and that Mr Taos was not given an adequate opportunity to respond to these allegations. The commission concluded that the dismissal was unfair as it did not meet the requirements set out in the Fair Work Act. As a result, the commission ordered that Mr Taos be reinstated to his former position or, alternatively, be compensated with two months' salary. The decision highlights the importance of procedural fairness and the necessity for employers to substantiate their reasons for dismissal with appropriate evidence.

Kolawdle Olusegun Taos v Abhis Bread 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