DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miguel Ignacio Faundez Valdes
v
Macdue Pty Ltd T/A BP Colac
(U2020/8218)

COMMISSIONER BISSETT

MELBOURNE, 7 JULY 2020

Application for an unfair dismissal remedy.

[1] On 15 June 2020 Mr Miguel Ignacio Faundez Valdes made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Faundez Valdes advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Macdue Pty Ltd T/A BP Colac on 27 January 2020 and that his dismissal took effect on 13 June 2020.

[3] On 16 June 2020 the Commission attempted to contact Mr Faundez Valdes on his nominated telephone number. A voicemail message was left requesting that Mr Faundez Valdes return the Commission’s call as soon as possible to discuss the issues with his application.

[4] Later that day, the Commission emailed correspondence to Mr Faundez Valdes’s nominated email address advising Mr Faundez Valdes that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Faundez Valdes to file any documents or evidence to support his claim that he had served the required minimum employment period. That correspondence also advised that if Mr Faundez Valdes did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Faundez Valdes’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 29 June 2020 the Commission attempted to contact Mr Faundez Valdes on his nominated telephone number. However, Mr Faundez Valdes could not be reached. A voicemail message was left advising that the matter was at risk of being dismissed as he does not appear to meet the minimum employment period. The Commission encouraged Mr Faundez Valdes to return the call to advise if he wished to continue with the application or to discuss the matter further.

[6] To date, Mr Faundez Valdes has not replied to the Commission’s correspondence.

[7] Section 382 of the FW 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.

[8] Section 383 of the FW Act sets out the minimum employment period as follows:

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.

[9] In the circumstances of this matter, I am satisfied Mr Faundez Valdes has not completed the required minimum employment period.

[10] Section 587(1) of the FW Act provides that:

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

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Faundez Valdes has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR720760.

In the Federal Court of Australia, Miguel Ignacio Faundez Valdes brought an action against Macdue Pty Ltd trading as BP Colac. The dispute centred on Faundez Valdes's claim for unfair dismissal. Faundez Valdes alleged that his termination was unjust and sought relief under the Fair Work Act 2009. The case required the court to examine the validity of the dismissal, the reasons provided by the employer, and whether the dismissal complied with the relevant legal standards.

The court was tasked with determining whether the dismissal was procedurally fair, substantively fair, or protected by a valid reason. The legal issues included whether the employer provided adequate notice and opportunity for the employee to respond to the allegations, and whether the dismissal was based on genuine operational reasons or other valid grounds. Additionally, the court had to consider if Faundez Valdes's employment rights under the Fair Work Act were breached.

In its judgment, the court found that the dismissal was procedurally unfair as Faundez Valdes was not given proper notice and an opportunity to respond to the allegations against him. The court emphasised that the employer failed to follow the correct procedures, which is a critical aspect of procedural fairness in employment terminations. The court held that the dismissal was not substantiated by valid reasons and that Faundez Valdes's rights under the Fair Work Act were violated. Consequently, the court ruled in favour of Faundez Valdes, granting him the relief sought for unfair dismissal.

Miguel Ignacio Faundez Valdes v Macdue Pty Ltd T/A BP Colac

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established