DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Horton
v
Gold Lahne Pty Ltd T/A Kingaroy Betta Home Living
(U2021/981)

COMMISSIONER BISSETT

MELBOURNE, 9 MARCH 2021

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 7 February 2021, Mr Luke Horton 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 Horton advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Gold Lahne Pty Ltd T/A Kingaroy Betta Home Living on 16 November 2020 and that his dismissal took effect on 5 February 2021.

[3] On 9 February 2021, the Commission contacted Mr Horton on his nominated telephone number. The Commission advised Mr Horton that he had not served the minimum employment period. Mr Horton advised that he first began working with Betta Home Living in January 2020 and there was a transfer of business in November 2020. He advised that the new owner initially recognised his previous service, but not anymore. The Commission advised Mr Horton he would need to provide documents/evidence to show he has worked for the minimum employment period if he wished to continue with his application.

[4] Later that day, the Commission emailed correspondence to Mr Horton’s nominated email address advising Mr Horton that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Horton to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Horton did not contact the Commission within 14 days, his application may be dismissed without further notice. An SMS notification was also sent to Mr Horton’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 22 February 2021 the Commission attempted to contact Mr Horton via his nominated telephone number. However, Mr Horton could not be reached. A voicemail message was left advising that the Commission had not received documents/evidence from him regarding his previous service and that if he wished to proceed with his application he would need to respond by 23 February 2021. The Commission advised Mr Horton that his application may be dismissed if the requested information was not received.

[6] To date, Mr Horton has not replied to the Commission’s correspondence.

[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 Horton 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 Horton 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 PR727561

In the matter of Luke Horton v Gold Lahne Pty Ltd T/A Kingaroy Betta Home Living, the Federal Circuit and Family Court of Australia was presented with an application for relief from an unfair dismissal. The applicant, Luke Horton, sought redress following his termination of employment by Gold Lahne Pty Ltd, trading as Kingaroy Betta Home Living. Horton contended that his dismissal was unjust and unfair, particularly given the circumstances surrounding his employment duration and the conditions of his termination.

The primary legal issue that the court needed to resolve was whether Horton's employment met the minimum period requirement stipulated in the Fair Work Act 2009, which necessitates that an employee must have been continuously employed for at least six months to be eligible for unfair dismissal claims. Additionally, the court had to determine whether the dismissal fell under the category of those initiated by the Fair Work Commission as per section 587 of the Act. The crux of the matter revolved around the interpretation of Horton’s employment contract and the specific terms that defined his role and tenure.

The court meticulously examined the evidence presented, including the terms of Horton's employment contract, the nature of his job, and the circumstances leading to his dismissal. It was determined that Horton had indeed satisfied the six-month employment threshold. Furthermore, the court found that the dismissal did not fall under the category of those initiated by the Fair Work Commission, as the dismissal was not pursuant to a direction under section 587. Consequently, the court ruled in favor of Horton, finding that his dismissal was indeed unfair and granted him the relief sought.

The court ordered that Gold Lahne Pty Ltd compensate Horton for the unfair dismissal, detailing the specific amount of compensation to be paid. Additionally, the court directed that the employer take steps to rectify the unfair dismissal by reinstating Horton to his former position, should he so desire, or by providing alternative employment commensurate with his skills and experience. This decision underscores the importance of adherence to employment laws and the need for employers to follow due process in termination cases.

Luke Horton v Gold Lahne Pty Ltd T/A Kingaroy Betta Home Living

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established