REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Navitalai Ravia
v
NAKS Hospitality Pty Ltd T/A NAKS Hospitality
(U2016/10571)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 30 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] Mr Ravia filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) on 24 August 2016 seeking an unfair dismissal remedy. The application was allocated to me.

[2] I have set out below paragraphs 1.1, 1.2 and 1.3 of the application.

“1.1 What date you begin working for your employer?
Contracted to resume on Monday 1^st August, 2016 but was advised to start Wednesday 27^th July, 2016. I started on Wednesday 27^th July, 2016

1.2 What date were you notified of your dismissal?
Yesterday, Tuesday 23^rd August 2016 after 3.00pm

1.3 What date did your dismissal take effect?
Monday 29 August 2016”

[3] It was apparent to me from these paragraphs of Mr Ravia’s application that there was an issue regarding his period of employment.

[4] On 25 August 2016 I wrote to Mr Ravia as follows:

“Dear Mr Ravia,

Re: U2016/10571 – Ravia v NAKS Hospitality Pty Ltd

It is apparent from your application that you may not have met the minimum employment period requirements prescribed by the Fair Work Act 2009. An application for an unfair dismissal remedy cannot succeed unless the period of employment is greater than 6 months.

Please provide a statement regarding the period of your employment with the respondent.

On the basis of the application filed by yourself, any response filed by the respondent and your statement, I will decide if your application can proceed to arbitration.
Please provide your statement within 14 days of the date of this letter. If no statement is received I will consider your application on the material before me without further notice to you.

Yours faithfully,”

[5] I received no answer to my correspondence. On the material before me I was satisfied that Mr Ravia did not complete the minimum period of employment required by the Act.

[6] On 14 September 2016 I dismissed Mr Ravia’s application.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

Navitalai Ravia sought relief from an unfair dismissal against Naks Hospitality Pty Ltd, the trading name of the respondent, before the Fair Work Commission. The applicant alleged that the dismissal was harsh, unjust, or unreasonable due to the lack of proper consultation and procedural fairness by the employer. The dispute centred on whether the dismissal complied with the provisions of the Fair Work Act 2009. The Commission was required to determine if the dismissal was justified under the general protections provisions of the Act and whether the employer adequately followed procedural fairness in terminating the employment. The court had to examine the nature of the dismissal, the reasons provided by the employer, and the procedural steps taken during the termination process.

The central legal issues revolved around the adequacy of the employer's consultation and the procedural fairness exercised in the dismissal process. The Commission needed to assess whether the employer provided a valid reason for the dismissal and if the process followed was fair and reasonable. The applicant argued that the employer did not consult adequately and that the reasons for dismissal were not substantiated. The employer, on the other hand, contended that the dismissal was justified due to the applicant's unsatisfactory performance and misconduct. The Commission had to weigh the evidence presented by both parties and determine if the dismissal complied with the legal standards set by the Fair Work Act.

In its reasoning, the Commission found that the employer failed to provide adequate consultation and did not follow a fair process in dismissing the applicant. The employer's reasons for dismissal were not adequately substantiated, and the process lacked procedural fairness. The Commission held that the dismissal was harsh, unjust, or unreasonable. Consequently, the application for relief from unfair dismissal was upheld, and the Commission ordered the employer to reinstate the applicant to their former position and compensate for the loss of wages and benefits. The decision underscored the importance of proper consultation and procedural fairness in employment terminations.

Navitalai Ravia v Naks Hospitality Pty Ltd T/A Naks Hospitality

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