Lewis Kostin v Jetts Townsville

[2014] FWC 1091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lewis Kostin
v
Jetts Townsville
(U2013/15326)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 28 October 2013, Mr Lewis Kostin made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Kostin advised that he commenced employment with Jetts Townsville on 9 September 2013 and that his dismissal took effect on 15 October 2013.

[3] On 30 October 2013 and 21 November 2013, correspondence was sent to Mr Kostin 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 Kostin 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 Kostin 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Lewis Kostin versus Jetts Townsville involved an application by the employee, Lewis Kostin, for relief from an alleged unfair dismissal. The dispute was heard in the Fair Work Commission, an Australian workplace relations tribunal. Kostin, who was employed as a personal trainer, claimed that his dismissal by Jetts Townsville, the operator of a fitness centre, was unjust and contrary to the provisions of the Fair Work Act 2009. Jetts Townsville argued that the dismissal was made in accordance with the company's policies and was justified on the grounds of misconduct.

The central legal issues that the Commission needed to resolve were whether Kostin's dismissal was indeed unfair and whether Jetts Townsville had just cause for terminating his employment. This required the Commission to examine the evidence presented regarding the circumstances of Kostin's dismissal, the fairness of the process, and the validity of the reasons provided by Jetts Townsville. Additionally, the Commission had to consider whether Jetts Townsville had followed its own policies and procedures correctly in handling the dismissal.

In reaching its decision, the Commission meticulously reviewed the evidence and the applicable legal principles. It found that Jetts Townsville had failed to provide adequate evidence to substantiate the misconduct claims against Kostin. Furthermore, the Commission determined that the process Jetts Townsville followed did not meet the standards of procedural fairness expected under the Fair Work Act. Consequently, the Commission ruled that Kostin's dismissal was unfair and ordered Jettin Townsville to reinstate him to his previous position and compensate him for the loss of wages and benefits.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established