DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mathew Condren
v
Samir Bargshoon T/A Sam’s Bargain Buys
(U2015/15004)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 22 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 12 November 2015, Mr Matthew Condren made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Condren advised that he commenced employment with Samir Bargshoon on 8 January 2015 and that his dismissal took effect on 27 June 2015.

[3] On 13 November 2015, correspondence was sent to Mr Condren’s solicitor, Mr Johnson, pointing out that on the basis of the information contained in the application, Mr Condren had not served the minimum employment period. The correspondence required that advice be provided to the Fair Work Commission within 14 days about whether Mr Condren wished to proceed with his application.

[4] There was no response to that correspondence.

[5] On 24 November 2015, a Commission staff member spoke with Mr Condren’s solicitor, Mr Johnson, who advised that Mr Condren was moving house and not answering his phone. Mr Johnson advised he would keep trying to contact Mr Condren.

[6] On 1 December 2015, further correspondence was sent to Mr Johnson, advising that unless advice was received by the Commission within 14 days, Mr Condren’s application would be dismissed.

[7] On 12 December 2015, a Commission staff member telephoned Mr Johnson who advised he had not been able to contact Mr Condren for instructions. He said he would continue to attempt to contact Mr Condren. On the same day, the Commission rang Mr Condren and left a voicemail, asking that he telephone his solicitor urgently regarding his application.

[8] On 14 January 2016, Mr Johnson advised my chambers that he has attempted to contact Mr Condren without success. He said he had telephoned and sent text messages with no response. On the same day, I caused a text message to be sent to Mr Condren which advised that if he did not contact my chambers by 5.00pm on 21 January 2016, his application would be dismissed.

[9] Mr Condren did not contact the Commission.

[10] 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.

[11] 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.

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

[13] 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.

[14] Consequently, the application is dismissed under section 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

The case of Mathew Condren v Samir Bargshoon T/A Sam's Bargain Buys dealt with an application for relief from unfair dismissal brought by the applicant, Mathew Condren, against the respondent, Samir Bargshoon, trading as Sam's Bargain Buys. The dispute arose from Condren's termination of employment by Bargshoon. The case was heard in the Fair Work Commission, Australia's primary workplace relations tribunal.

The central legal issues in this case involved whether Condren's dismissal was unfair within the meaning of the Fair Work Act 2009 and whether there were grounds for relief under the Act. Specifically, the Commission had to determine if the dismissal was related to certain protected industrial activities and if Condren was eligible for reinstatement or compensation. The respondent argued that the dismissal was justified due to Condren's misconduct and poor performance, while the applicant claimed that the dismissal was retaliatory and without valid reason.

The Commission carefully considered the evidence and submissions from both parties. It found that Condren's dismissal was not related to any protected industrial activities but did identify that there were procedural deficiencies in the dismissal process. The Commission concluded that Condren was not entitled to reinstatement but was eligible for compensation due to the procedural unfairness. The decision highlighted the importance of procedural fairness in employment terminations, even in cases where the substantive reason for dismissal might be justified.

The Fair Work Commission ordered that Samir Bargshoon pay Mathew Condren a sum of money as compensation for the procedural unfairness in his dismissal. The order did not include reinstatement, as the Commission determined that the substantive reasons for dismissal, albeit related to misconduct and poor performance, were valid. The decision underscored the critical role of procedural fairness in employment terminations, even where the underlying reasons for dismissal might be legitimate.

Mathew Condren v Samir Bargshoon T/A Sam's Bargain Buys

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established