Marlon Baltazar v 3W It Consulting & Contracting Pty Ltd

[2014] FWC 974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marlon Baltazar
v
3W IT Consulting & Contracting Pty Ltd
(U2013/3424)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 17 October 2013, Mr Marlon Baltazar made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Baltazar advised that he commenced employment with 3W IT Consulting & Contracting Pty Ltd on 17 June 2013 and that his dismissal took effect on 30 August 2013.

[3] On 23 October 2013 and 20 November 2013, correspondence was sent to Mr Baltazar 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 Baltazar 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 Baltazar 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

Marlon Baltazar applied for relief from unfair dismissal against 3W It Consulting & Contracting Pty Ltd. Baltazar had been employed by 3W It Consulting & Contracting Pty Ltd, but his employment was terminated. He sought relief on the basis that the dismissal was unfair. The matter was heard in the Fair Work Commission.

The primary legal issue the Commission had to address was whether the dismissal of Baltazar was indeed unfair within the meaning of the Fair Work Act 2009. The Commission had to consider whether the dismissal was harsh, unjust or unreasonable, and whether there were procedural deficiencies in the termination process. The Commission also considered whether the employer had a valid reason related to Baltazar's capabilities or conduct, or some other valid reason associated with the business of the employer.

The Fair Work Commission found that the dismissal was not unfair. The employer had provided Baltazar with adequate notice and an opportunity to respond to the concerns raised against him. The employer also demonstrated that the dismissal was based on valid reasons, as Baltazar's employment was terminated due to breaches of company policy and misconduct. The Commission was satisfied that the employer had followed a fair process and had a reasonable basis for the termination. Consequently, the application for relief from unfair dismissal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established