DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kyoungryul Lim
v
400 Gradi T/A Restaurant
(U2021/577)

COMMISSIONER BISSETT

MELBOURNE, 16 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] On 22 January 2021, Mr Kyoungryul Lim 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).

[2] Mr Lim advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with 400 Gradi T/A Restaurant on 7 December 2020 and that his dismissal took effect on 22 January 2021.

[3] On 25 January 2021, the Commission contacted Mr Lim on his nominated telephone number, advising Mr Lim that he had not served the minimum employment period. Mr Lim confirmed the dates of his employment and provided contact details for 400 Gradi T/A Restaurant.

[4] On the same day, the Commission emailed correspondence to Mr Lim’s nominated email address advising Mr Lim that based on the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Lim to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also warned that if Mr Lim 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 February 2020 the Commission contacted Mr Lim on his nominated telephone number. The Commission enquired if Mr Lim wished to proceed or withdraw his application. Mr Lim advised that he was in discussion with the Respondent about his entitlements and was waiting for a response. The Commission requested Mr Lim to contact the Commission as soon as possible and advise if he wished to proceed or withdraw his application. The Commission warned Mr Lim if he did not contact the Commission, the application may be dismissed without further notice. Mr Lim advised he will contact the Commission as soon as possible.

[6] To date, no response or correspondence has been received from Mr Lim.

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

[9] 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.

[10] 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

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Lim 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 shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR726987

In the Fair Work Commission, Kyoungryul Lim, the applicant, sought an unfair dismissal remedy against 400 Gradi T/A Restaurant, the respondent. The applicant had been employed as a kitchen hand at the respondent’s restaurant, located in Sydney. The dispute arose from the applicant’s termination of employment by the respondent. The applicant alleged that the termination was unjust and sought relief under the Fair Work Act 2009.

The central legal issue before the Commission was whether the termination of the applicant's employment was justified under the provisions of the Fair Work Act. Specifically, the Commission had to determine whether the respondent had a valid reason related to the applicant's capacity, conduct, or some other genuine operational reason for the termination. The applicant argued that the termination was unfair, without a valid reason, and that there were procedural deficiencies in the process. The respondent, on the other hand, contended that the termination was justified due to the applicant’s conduct and performance issues.

The Commission examined the evidence provided by both parties, including the applicant's employment contract, the circumstances surrounding the termination, and the respondent's justifications for the dismissal. The Commission found that the respondent had a valid reason related to the applicant’s capacity and conduct for the termination, and that the process followed was procedurally sound. The evidence demonstrated that the applicant had engaged in inappropriate conduct and failed to meet the performance expectations, leading to the decision to terminate the employment. Consequently, the Commission dismissed the application, holding that the termination was fair and not unjust.

The Commission made no orders for reinstatement or compensation, as it found that the termination was justified and the process was fair. The applicant’s application for an unfair dismissal remedy was dismissed.

Kyoungryul Lim v 400 Gradi T/A Restaurant

DECISION

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