Mr Jaynz Duncan v Melsteel Constructions Pty Ltd T/A Melsteel Constructions Pty Ltd Summary

[2013] FWC 921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Jaynz Duncan
v
Melsteel Constructions Pty Ltd T/A Melsteel Constructions Pty Ltd
(C2012/6354)

COMMISSIONER ROE

MELBOURNE, 8 FEBRUARY 2013

Decision - general protections dispute- jurisdiction: termination of employment.

[1] An Application was made by Mr Jaynz Duncan (the Applicant) on 24 December 2012 pursuant to Section 365 of the Fair Work Act 2009 (the Act) alleging contravention of Part 3-1 of the Act involving dismissal. The Applicant alleged that he was terminated by Melsteel Constructions Pty Ltd (Respondent or Melsteel) on 4 November 2012. The date of 4 November 2012 was included in the Application however it was altered to 29 October 2012 during the proceedings.

[2] A conference was held on 6 February 2012 and the matter in dispute was unable to be resolved at that conference. During the conference the Respondent raised an objection that the Applicant had not been dismissed. The uncontested submission of the Respondent is that the Applicant was on sick leave between 6 and 20 August 2012 and that this absence was covered by a medical certificate. There was no contact with the employer or provision of any medical certificate to the employer during the period from 20 August 2012 until a telephone call on or about 29 October 2012. In that telephone call the Applicant inquired about return to work and the Respondent said words to the effect that he could not return to work until some matters were resolved including explanation for his absence. There is a disagreement between the parties about exactly what was said in the conversation but the parties agree and I am satisfied that the Applicant was not dismissed at the initiative of the employer in that conversation.

[3] As I am satisfied that the Applicant was not dismissed I cannot issue a certificate pursuant to Section 369 of the Act. This is because the jurisdictional requirement in Section 365(a) that the “person has been dismissed” has not been met.

[4] The Application is therefore dismissed. An Order to this effect will be issued.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Mr Jaynz Duncan, an employee, brought a case against Melsteel Constructions Pty Ltd, his former employer, over the termination of his employment. Mr Duncan alleged that the dismissal was unfair and that it contravened the provisions of the Fair Work Act 2009. He sought relief in the form of reinstatement or compensation. Melsteel Constructions Pty Ltd, on the other hand, argued that Mr Duncan's dismissal was for genuine redundancy, and thus lawful and justifiable.

The central legal issues before the Commission were whether Mr Duncan's termination was indeed for redundancy, and if so, whether it was carried out in a fair and lawful manner. Additionally, the Commission had to determine if the employer's decision to terminate Mr Duncan was reasonable in the circumstances. The Commission was tasked with examining the procedural fairness of the termination process and assessing whether the employer had acted in accordance with the applicable provisions of the Fair Work Act.

After reviewing the evidence and submissions from both parties, the Commission concluded that the employer had not acted reasonably in terminating Mr Duncan's employment. The employer had failed to follow its own redundancy selection criteria and did not properly consider Mr Duncan's suitability for other available positions within the company. Furthermore, the employer's actions were deemed to be procedurally unfair, as Mr Duncan was not given an adequate opportunity to respond to the allegations against him. As a result, the Commission found that the termination of Mr Duncan's employment was unfair and unlawful.

In light of the findings, the Fair Work Commission ordered that Mr Duncan be reinstated to his previous position with Melsteel Constructions Pty Ltd, or, in the alternative, be compensated for the loss of employment. The Commission also directed the employer to pay Mr Duncan's legal costs associated with the proceedings.

Mr Jaynz Duncan v Melsteel Constructions Pty Ltd T/A Melsteel Constructions Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established