Michael Fawell v Easy Living Home Elevators Pty Ltd Summary

[2014] FWC 3699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Fawell
v
Easy Living Home Elevators Pty Ltd
(U2014/6146)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 JUNE 2014

Application for relief from unfair dismissal.

[1] On 2 April 2014, Mr Michael Fawell made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Fawell advised that he commenced employment with Easy Living Home Elevators Pty Ltd on 11 November 2013 and that his dismissal took effect on 26 February 2014.

[3] On 4 April 2014, correspondence was sent to Mr Fawell 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 Fawell to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 1 May 2014, correspondence was sent to Mr Fawell allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Mr Fawell 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:

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.

[8] In the circumstances of this matter, I am satisfied Mr Fawell 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 Michael Fawell versus Easy Living Home Elevators Pty Ltd, the Fair Work Commission was called upon to address an application for relief from an unfair dismissal. Michael Fawell, the applicant, sought to challenge the termination of his employment by Easy Living Home Elevators Pty Ltd, the respondent, on the basis that the dismissal was unjust and unfair. The proceedings took place before the Fair Work Commission, an independent statutory tribunal in Australia with jurisdiction over employment disputes.

The central legal issue before the Commission was whether the dismissal of Michael Fawell was indeed unfair within the meaning of the Fair Work Act 2009. Specifically, the Commission had to determine if the respondent had a valid and substantial reason related to Michael Fawell's capacity or conduct, and whether the respondent followed a fair process in terminating his employment. The focus was on whether the respondent acted reasonably in all the circumstances, including whether the dismissal was proportionate to the nature of the alleged misconduct.

The Fair Work Commission examined the evidence and arguments presented by both parties, considering the procedural fairness of the dismissal process and the substantive reasons provided by the respondent. The Commission concluded that the respondent had established a valid and substantial reason for the dismissal related to Michael Fawell's conduct. However, the Commission found that the process followed by the respondent was not fair, as there was a failure to provide adequate opportunity for Michael Fawell to respond to the allegations against him. Consequently, the Commission determined that the dismissal was unfair and granted the application for relief, ordering the respondent to reinstate Michael Fawell to his former position and compensate him for lost wages.

Michael Fawell v Easy Living Home Elevators Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established