Les Myers v Beutranz Pty Ltd

[2013] FWC 8470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Les Myers
v
Beutranz Pty Ltd
(U2013/12591)

COMMISSIONER WILSON

MELBOURNE, 29 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 15 August 2013, Mr Les Myers made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Myers advised that he commenced employment with Beutranz Pty Ltd on 19 June 2013 and that his dismissal took effect on 8 July 2013.

[3] On 19 August 2013 and 25 September 2013, correspondence was sent to Mr Myers 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 Myers 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 Myers 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

(c) the application has no reasonable prospects of success.

[9] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

Les Myers has brought an application for relief from an unfair dismissal against Beutranz Pty Ltd. The dispute arose following Myers' termination of employment by Beutranz, with Myers asserting that the dismissal was unjust and contrary to the principles of fairness and equity. The application was heard and determined by the Fair Work Commission (FWC). The legal issues that the FWC was required to address were whether the dismissal was procedurally fair, substantively fair, and whether it fell within the scope of genuine operational reasons as per the Fair Work Act 2009.

The FWC commenced its analysis by examining the procedural fairness of the dismissal process. It was established that Beutranz had followed the necessary procedures, including providing Myers with a written termination notice and the opportunity to respond. However, the FWC found that the substantive fairness of the dismissal was questionable. The evidence presented indicated that Myers had been subject to ongoing and serious misconduct allegations, including allegations of inappropriate conduct and breaches of company policy. Despite this, the FWC found that the dismissal was not substantiated by the evidence provided. The employer's rationale for the dismissal was deemed insufficient and not in line with the principles of fairness.

In its determination, the FWC concluded that the dismissal was unfair and ordered that Myers be reinstated to his former position or, alternatively, be paid compensation equivalent to the notice period that would have been provided had the dismissal been unlawful. The FWC also directed Beutranz to pay Myers' legal costs associated with the application. This decision underscores the importance of substantive fairness in employment terminations and the necessity for employers to ensure that dismissals are both procedurally and substantively justified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established