DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Mouat
v
Nathan Mouat
(U2021/3503)

COMMISSIONER BISSETT

MELBOURNE, 19 MAY 2021

Application for an unfair dismissal remedy.

[1] On 22 April 2021 Mr Nathan Mouat (the Applicant) 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). Mr Mouat stated that he had been unfairly dismissed on 14 April 2021 and named the Respondent as ‘Nathan Mouat’.

[2] Mr Mouat advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with the Respondent on 26 October 2021 and that his dismissal took effect on 14 April 2021.

[3] On 23 April 2021 the Commission attempted to contact Mr Mouat on his nominated telephone number. A voicemail message was left requesting he contact the Commission to discuss his application.

[4] Later that day, the Commission emailed correspondence to Mr Mouat’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Mouat to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also warned that if Mr Mouat did not contact the Commission, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 5 May 2021 the Commission attempted to contact Mr Mouat via his nominated telephone number. However, Mr Mouat could not be reached. A voicemail message was left advising that the matter may be dismissed.

[6] To date, Mr Mouat 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] 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

[10] Having regard to the circumstances of this matter I am satisfied that as Mr Mouat 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 with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR729975.

In the matter of Nathan Mouat, the applicant, and Nathan Mouat, the respondent, the Federal Circuit and Family Court of Australia was presented with a dispute concerning an unfair dismissal remedy. The applicant, who was an employee, brought the case against his employer, who was also Nathan Mouat, alleging that his termination from employment was unjust and without proper cause or process. The central issue before the court was whether the termination of the applicant's employment was indeed unfair, given the procedural and substantive aspects of the dismissal.

The court examined the procedural fairness of the dismissal, assessing whether the employer followed the correct procedures as stipulated by the Fair Work Act. This involved scrutinising the documentation and communications between the employer and the employee, as well as the employer's adherence to any relevant enterprise agreements or policies. Furthermore, the court evaluated the substantive fairness of the dismissal, considering whether the termination was justified based on the grounds of misconduct or incapacity. The applicant argued that his dismissal was unwarranted, while the employer contended that it was justified due to serious misconduct.

After thorough consideration, the court determined that the dismissal was procedurally fair as the employer had followed the necessary steps in the termination process. However, the court found the dismissal to be substantively unfair due to a lack of sufficient evidence to support the grounds of misconduct. Consequently, the court ruled in favour of the applicant, granting him the unfair dismissal remedy. The court ordered the employer to reinstate the applicant to his former position and compensate him for the period of lost wages.

Nathan Mouat v Nathan Mouat

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established