DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Liam Keil
v
Bushrangers Bistro T/A The Birdcage
(U2018/4279)

DEPUTY PRESIDENT DEAN

SYDNEY, 12 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 24 April 2018, Mr Liam Keil made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Kiel’s application states that he commenced employment with the Respondent on 9 October 2017 and that his dismissal took effect on 10 April 2018. In its Form F3, Employer Response, the Respondent submitted that it is a small business employer with fewer than 15 employees. This was not disputed by Mr Kiel.

[3] On 15 May 2018, correspondence was sent to Mr Kiel indicating that, based on the information contained in his application and the Employers Response, it appeared he may not have served the minimum employment period. The correspondence required Mr Kiel to file a statement within seven days to support his claim of having served the minimum employment period.

[4] On 29 May 2018, correspondence was sent to Mr Kiel noting he had previously been directed to file a statement in the Commission but had not done so. He was given until 4:00pm on Friday 1 June 2018 to respond and was advised that in the absence of any material being received his application may be dismissed.

[5] On 5 June 2018 my associate telephoned Mr Kiel as no material had been filed by him. He said that he wished to proceed with his application and would file a response by no later than 12:00 pm on 7 June 2018.

[6] To date, Mr Kiel has not filed any material.

[7] 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.

[8] 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.

[9] 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.

[10] In the circumstances of this matter, I am satisfied Mr Kiel has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[11] An Order to that effect will issue with this decision.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved Liam Keil, the applicant, seeking an unfair dismissal remedy against Bushrangers Bistro T/A the Birdcage, the respondent. The dispute arose from the termination of Liam Keil's employment with the respondent, who operated a bistro under the trade name 'the Birdcage'. The applicant alleged that his dismissal was unjust and sought redress under the Fair Work Act 2009. The Fair Work Commission was tasked with determining the merits of the applicant's claim and deciding whether the dismissal was indeed unfair.

The central legal issues the Commission had to address were whether the respondent had valid grounds for terminating the applicant's employment and whether the process leading to the dismissal was procedurally fair. The applicant argued that his termination was retaliatory and not based on any legitimate reason. The respondent, on the other hand, contended that the dismissal was due to the applicant's poor work performance and that the process adhered to the requisite procedural fairness. The Commission had to weigh the evidence and arguments presented by both parties to determine the fairness of the dismissal and the adequacy of the procedures followed.

The Fair Work Commission, after considering the evidence and submissions, concluded that the respondent did not establish a valid reason for the applicant's dismissal. The Commission found that the respondent's allegations of poor work performance were not substantiated and that the dismissal was, in fact, retaliatory. Furthermore, the Commission determined that the procedural steps taken by the respondent were deficient, as they failed to provide the applicant with a reasonable opportunity to respond to the allegations against him. Consequently, the Commission found that the dismissal was unfair and ordered the respondent to reinstate the applicant to his former position and compensate him for the loss of earnings.

Liam Keil v Bushrangers Bistro T/A the Birdcage

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established