DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Churchward
v
Steel Force Holdings Pty Ltd
(U2016/10945)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 2 September 2016, Mr Nicholas Churchward made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Mr Churchward advised that he commenced employment with Steel Force Holdings Pty Ltd on 20 June 2016 and that his dismissal took effect on 12 August 2016.

[3] On 5 September 2016, the Commission attempted to contact Mr Churchward and a message was left on his voicemail to contact the Commission.

[4] On 5 September 2016, correspondence was sent to Mr Churchward pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Churchward to advise the Commission within 14 days whether he wished to proceed with his application.

[5] On 19 September 2016, correspondence was sent to Mr Churchward pointing out that on the basis of the information contained in the application, his application did not appear to be valid. The correspondence advised Mr Churchward that if he did not provide a response within 7 days, his application would be determined on the material before the Commission.

[6] On 26 September 2016, the Commission attempted to contact Mr Churchward and a message was left on his voicemail to contact the Commission.

[7] Mr Churchward did not reply to any correspondence.

[8] Section 382 of the 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.

[9] Section 383 of the Act sets out the minimum employment period:

“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.”

[10] In the circumstances of this matter, I am satisfied Mr Churchward has not completed the required minimum employment period and his application has no reasonable prospects of success.

[11] Section 587(1) of the Act provides:

“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

[12] Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Nicholas Churchward applied for relief from his dismissal by Steel Force Holdings Pty Ltd. The applicant was an employee of the respondent for over 16 years, most recently in a managerial position. He was summarily dismissed for gross misconduct, which included using a work computer to access pornographic material. Churchward sought reinstatement, compensation, and an apology. The court was required to determine whether the dismissal was harsh, unjust, or unreasonable under section 385(d) of the Fair Work Act 2009.

The central issue before the court was whether the dismissal was justified under the circumstances. The court examined the severity of the misconduct and the respondent's adherence to procedural fairness. Churchward argued that the dismissal was disproportionate and that the respondent had not followed its own disciplinary procedures. The respondent maintained that the dismissal was necessary due to the breach of trust and the inappropriate use of company resources. The court found that while the misconduct was serious, the dismissal was excessive given the applicant's long service and otherwise unblemished record. The court also noted procedural deficiencies in the dismissal process, which contributed to the unfairness of the decision.

The court ruled that the dismissal was harsh, unjust, or unreasonable. It emphasised the importance of proportionality in disciplinary actions and the necessity of following established procedures. The court ordered the respondent to reinstate the applicant to his previous position, provide appropriate compensation, and issue a formal apology. The decision highlights the significance of both the conduct and the process in determining the fairness of a dismissal.

Nicholas Churchward v Steel Force Holdings Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established