REASONS FOR DECISION

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

Mr Kym Hamilton
v
Image Car Wash T/A IMO Carwash
(U2016/4946)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 14 APRIL 2016

Application for relief from unfair dismissal – small business employer - minimum period of employment satisfied.

[1] The respondent lodged an Employer Response to Mr Hamilton’s application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), in which it designated the legal name of the respondent as Image Car Wash Pty Ltd. In that Employer Response the respondent notified a jurisdictional objection to the application on the basis that Mr Hamilton had not completed the minimum employment period required by the Act.

[2] The Act designates 12 months as the period for which an employee must be employed by a small business if that employee is to be entitled to lodge an application for an unfair dismissal remedy. The relevant section of the Act is set out below:

“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.”

[3] The applicant appeared with a friend and advocate, Ms Hallahan. Mr Warburton represented the respondent.

[4] Mr Hamilton was employed by the respondent from 9 February 2015 until his termination of employment on 8 February 2016. Mr Warburton concentrated his submissions on the fact that Mr Hamilton was terminated before he was allowed to commence work on 8 February 2016.

[5] Mr Hamilton attended work on 8 February 2016 ready to commence his duties. His commencement time was 8 am. His evidence was that he frequently arrived at work early and always commenced work when he arrived.

“Yes, I was always half an hour early.” 1

[6] Mr Warburton’s evidence was that:

“The applicant commenced employment on 9 February 2015; his last day at work was 7 February 2016 and he was dismissed at 7.30 on 8 August 2016.” 2

[7] I was satisfied that the respondent is a small business as defined by the Act.

[8] The Act requires an examination and determination of the period of employment. Mr Warburton concentrated his submissions on the fact that Mr Hamilton was terminated before he was allowed to commence work on 8 February 2016. However, the time and date at which employment ends is the date when the employee is given notice of termination of employment. Mr Hamilton was given notice of termination of his employment on 8 February 2016.

[9] I was satisfied and found that Mr Hamilton was employed for the minimum employment period required by the Act, in this case for 12 months. In this case, it being a leap year, he was employed for 366 days.

[10] It was for these reasons that I issued my Order dated 5 April 2016.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms C. Hallahan on behalf of the applicant.

Mr D.Warburton on behalf of the respondent.

Hearing details:

Brisbane.

2016,

5 April.

1 PN68

2 PN47

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Kym Hamilton commenced proceedings against his former employer, Image Car Wash trading as IMO Carwash, in the Fair Work Commission. The dispute centred around the unfair dismissal of Mr Hamilton, who sought relief under the Fair Work Act 2009. Mr Hamilton argued that his dismissal was unfair due to procedural irregularities and other factors, while the employer contended that the dismissal was justified and in compliance with the relevant legal standards. The Fair Work Commission was tasked with determining whether Mr Hamilton's dismissal was indeed unfair and, if so, what remedy might be appropriate.

The legal issues before the Commission included whether the employer complied with the procedural requirements when dismissing Mr Hamilton, whether the dismissal was for a valid reason related to his capacity or conduct, and whether the dismissal was harsh, unjust, or unreasonable. Additionally, the Commission had to assess if the employer met the threshold requirement of having at least ten employees, which is necessary for an unfair dismissal claim to proceed. Given the small business nature of the employer, the implications of the small business exception under the Fair Work Act were also considered.

In its decision, the Fair Work Commission found that the employer had indeed satisfied the minimum period of employment threshold, thus making Mr Hamilton's claim for unfair dismissal eligible. The Commission examined the procedural fairness of the dismissal process and concluded that the employer had not followed the required procedures. However, the Commission also found that the employer had a valid reason for dismissal related to Mr Hamilton's conduct. The Commission determined that while the dismissal was procedurally flawed, it was not unfair when considering the totality of circumstances, including the employer's justification and the nature of the misconduct. Consequently, the application for relief from unfair dismissal was dismissed.

No further orders were made by the Commission, as it found that the dismissal, despite procedural shortcomings, was not unfair in the given context. This decision underscores the importance of adhering to procedural fairness in dismissal processes and highlights the nuanced approach the Fair Work Commission takes when evaluating claims of unfair dismissal in small business contexts.

Mr Kym Hamilton v Image Car Wash T/A IMO Carwash

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established