Mr Jonathan Francis v Concrete Employment Services T/A Mansell Bulk Haulage Summary

[2014] FWC 1330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jonathan Francis
v
Concrete Employment Services T/A Mansell Bulk Haulage
(U2014/4102)

COMMISSIONER SPENCER

BRISBANE, 21 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] This decision relates to an application made by Mr Jonathan Francis (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Concrete Employment Services (the Respondent) was harsh, unjust or unreasonable.

[2] The Form F2 Application for Unfair Dismissal Remedy stated that the Applicant commenced employment on 27 September 2013 and further, that the Applicant was notified of the dismissal on 12 January 2014; a period of some three and a half months.

[3] Section 382 of the Act provides:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period....”

[4] Section 383 of the Act provides:

“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.”

[5] It is not in dispute that the Respondent is not a small business employer. There are no issues concerning employment with another employer or a transfer of business.

[6] The matter was before the Commission for Conference today. The Applicant did not dispute that his period of employment was less than the minimum employment period. On that basis I am satisfied that the Applicant was not a person protected from unfair dismissal. A number of other jurisdictional matters were raised at the time of the conference, however, given this preliminary jurisdictional matter, it is unnecessary to consider those further jurisdictional matters.

[7] The Commission does not have jurisdiction. The application filed pursuant to s.394 of the Act must be dismissed.

[8] I Order accordingly.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Mr Jonathan Francis, sought relief from an unfair dismissal decision against him by Concrete Employment Services trading as Mansell Bulk Haulage. The case was heard in the Fair Work Commission. Mr Francis was dismissed from his employment with the company for allegedly failing to complete his work duties as a truck driver. The company claimed that Mr Francis had been absent from work without permission and failed to provide adequate explanation for his absence.

The central legal issue before the Commission was whether Mr Francis' dismissal was justified, taking into account the principles of procedural fairness and the applicability of the unfair dismissal provisions under the Fair Work Act 2009. The Commission needed to determine whether the company followed proper procedures in dismissing Mr Francis and whether the dismissal was fair and reasonable in the circumstances. The applicant argued that the dismissal was unfair as the company failed to provide him with an opportunity to explain his absence before taking disciplinary action.

The Commission found that the company had acted in accordance with procedural fairness by providing Mr Francis with an opportunity to explain his absence. However, the Commission concluded that the dismissal was unfair because the company did not consider all available evidence and failed to explore alternative disciplinary measures before dismissing Mr Francis. The Commission also found that the company's decision to dismiss Mr Francis was harsh, unjust, or unreasonable, given the circumstances of the case. As a result, the Commission ordered the company to reinstate Mr Francis to his former position and compensate him for the loss of wages and benefits.

Mr Jonathan Francis v Concrete Employment Services T/A Mansell Bulk Haulage

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established