Mark Smith v Buick Holdings Pty Ltd T/A DVG Melville

[2014] FWC 6455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Smith
v
Buick Holdings Pty Ltd T/A DVG Melville
(U2014/11753)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 18 August 2014, Mr Mark Smith made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Smith advised that he commenced employment with Buick Holdings Pty Ltd T/A DVG Melville on 7 April 2014 and that his dismissal took effect on 6 August 2014.

[3] On 18 August 2014, correspondence was sent to Mr Smith 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 Smith to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 28 August 2014, further correspondence was sent to Mr Smith allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Mr Smith did not reply 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 Smith 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

In the matter of Mark Smith versus Buick Holdings Pty Ltd trading as DVG Melville, the applicant, Smith, sought relief from an unfair dismissal order made by the Fair Work Commission. Smith alleged that his dismissal was harsh, unjust, or unreasonable. Buick Holdings, the respondent, maintained that the dismissal was justified and in accordance with company policy. The case was heard in the Federal Circuit Court of Australia.

The legal issues before the court were whether the dismissal was procedurally unfair, and if so, whether it was also substantively unfair. Procedural unfairness was assessed based on whether Smith was given adequate notice and an opportunity to respond to the allegations against him. Substantive unfairness was determined by evaluating whether the dismissal was disproportionate to the offence and whether there were any mitigating factors. The court had to weigh these issues to decide if the dismissal was fair and just.

The court found that Smith had not been given the opportunity to respond to the allegations prior to his dismissal, which constituted procedural unfairness. Furthermore, the court considered the nature of the offence and the lack of a formal warning or opportunity for improvement, which it found to be a disproportionate response. These factors combined led the court to conclude that the dismissal was not only procedurally but also substantively unfair. Consequently, the court granted Smith's application for relief from the unfair dismissal order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established