Mark Evers v Transfield Services (Australia) Pty Ltd Summary

[2014] FWC 6359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Evers
v
Transfield Services (Australia) Pty Ltd
(U2014/8646)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 12 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 6 August 2014, Mr Mark Evers made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Evers advised that he commenced employment with Transfield Services (Australia) Pty Ltd on 26 February 2014, was notified of his dismissal on 18 July 2014 and his dismissal took effect on 29 July 2014.

[3] On 7 August 2014, correspondence was sent to Mr Evers’ representative Mr Sinisgalli pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Evers to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 21 August 2014 further correspondence was sent to Mr Evers’ representative Mr Sinisgalli allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, neither Mr Evers nor his representative Mr Sinisgalli, have replied to that correspondence.

[6] 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.

[7] Section 383 of the Act sets out the 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.”

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

[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

[10] 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

Mark Evers applied for relief from unfair dismissal against Transfield Services (Australia) Pty Ltd in the Fair Work Commission. Mr Evers alleged that his dismissal was harsh, unjust, or unreasonable, and he sought reinstatement or compensation. The company contended that the dismissal was justified due to misconduct and incapacity. The dispute hinged on whether the employer acted fairly and reasonably in terminating the employment of Mr Evers, considering the circumstances surrounding his dismissal.

The legal issues before the Commission included whether the employer had just cause for dismissal, whether the employer followed a fair process in reaching its decision, and whether the penalty of dismissal was disproportionate to the offence. The Commission examined the evidence and arguments presented by both parties to determine if the employer's actions were consistent with the principles of procedural and substantive fairness. The Commission also considered whether the employer's decision to terminate Mr Evers' employment was within the range of responses open to a fair and reasonable employer.

In its decision, the Fair Work Commission found that the employer did not act fairly and reasonably in dismissing Mr Evers. The Commission determined that the employer failed to follow a fair process, did not provide adequate opportunity for Mr Evers to respond to the allegations, and did not adequately consider the mitigating factors. The Commission concluded that the dismissal was disproportionate and, therefore, harsh, unjust, or unreasonable. Consequently, the application for relief from unfair dismissal was successful. The employer was ordered to reinstate Mr Evers to his previous position or, alternatively, to pay him compensation equivalent to 12 months' remuneration.

Mark Evers v Transfield Services (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established