Lakshmi Chand v Aua Group Pty Ltd T/A Rosa Mexicano Restaurant

[2014] FWC 614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lakshmi Chand
v
Aua Group Pty Ltd T/A Rosa Mexicano Restaurant
(U2013/16257)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 JANUARY 2014

Application for relief from unfair dismissal.

[1] On 26 November 2013, Mr Lakshmi Chand made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Chand advised that he commenced employment with Aua Group Pty Ltd T/A Rosa Mexicano Restaurant on 29 April 2013 and was notified of his termination on 28 October 2013 and that his dismissal would take effect on 8 November 2013.

[3] On 28 November and 17 December 2013, correspondence was sent to Mr Chand pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Chand did not reply to that correspondence.

[5] 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.

[6] 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.

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

[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] 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

Lakshmi Chand, the applicant, brought an application for relief from an unfair dismissal against Aua Group Pty Ltd, trading as Rosa Mexicano Restaurant, the respondent. The applicant sought relief from the dismissal on the basis that it was harsh, unjust, or unreasonable, as well as unfair. The case was heard in the Fair Work Commission.

The legal issues before the Commission involved determining whether the dismissal was fair and whether the dismissal was harsh, unjust, or unreasonable. The respondent argued that the dismissal was justified due to the applicant’s misconduct, including dishonesty, and a lack of trust and confidence in their working relationship. The applicant, on the other hand, contested the validity of the dismissal and argued that it was unjust and unreasonable.

The Commission found that the applicant’s dismissal was not harsh, unjust, or unreasonable. While the respondent established that there was sufficient evidence to justify the dismissal on the grounds of misconduct and a breakdown of the relationship, the Commission determined that the dismissal was not unfair. The Commission considered the evidence presented, including the applicant’s admission to the misconduct and the impact of their actions on the workplace. The Commission concluded that the respondent’s decision to dismiss the applicant was reasonable and appropriate, given the circumstances. Therefore, the application for relief from the dismissal was dismissed.

The Fair Work Commission dismissed the application for relief from unfair dismissal, finding that the dismissal was not harsh, unjust, or unreasonable. The Commission found that the respondent had valid reasons for dismissing the applicant based on misconduct and a lack of trust and confidence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established