DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick Paternott
v
Plumbers Supplies Co-Operative Ltd
(U2015/11734)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 28 OCTOBER 2015

Application for relief from unfair dismissal.

[1] On 9 September 2015, Mr Patrick Paternott made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Paternott advised that he commenced employment with Plumbers Supplies Co-Operative Ltd on 23 February 2015 and that he was dismissed on 21 August 2015.

[3] On 14 September 2015, a Fair Work Commission staff member spoke with Mr Paternott about the minimum employment period under the Act. Mr Paternott advised that he wished for the matter to proceed to hearing.

[4] On 15 September 2015, correspondence was sent to Mr Paternott 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 Paternott to advise the Commission within 14 days whether he wished to proceed with his application.

[5] Mr Paternott did not reply to that correspondence.

[6] On 8 October 2015, the Commission attempted to contact Mr Paternott in relation to the correspondence of 15 September 2015. There was no answer and a voicemail message was left.

[7] On 12 October 2015, I caused further correspondence to be sent to Mr Paternott. He was asked to provide any documents/evidence in support of his claim that he had served the minimum employment period. Mr Paternott was advised that unless advice was received by him within 14 days, his application would be dismissed.

[8] To date, Mr Paternott has not replied to any correspondence.

[9] 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.

[10] Section 383 of the Act sets out the 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.”

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

[12] 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

[13] 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

CaseChat Overview and Summary

The case of Patrick Paternott v Plumbers Supplies Co-Operative Ltd was heard by the Fair Work Commission, where the applicant sought relief from an unfair dismissal. Paternott was employed as a sales manager by the respondent company, which is a co-operative involved in the wholesale distribution of plumbing supplies. The dispute arose when Paternott was terminated from his position, and he subsequently lodged an application claiming that the dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The central issue before the Commission was whether the termination was harsh, unjust, or unreasonable, and if the respondent had valid grounds for dismissing Paternott.

The Commission needed to determine the validity of the respondent's reasons for dismissal, which were based on allegations of misconduct and poor performance. The respondent argued that Paternott's conduct warranted termination due to repeated breaches of company policy and failure to meet performance standards. Conversely, Paternott claimed that the dismissal was retaliatory, stemming from his grievances about workplace conditions and the implementation of a new performance management system. The Commission had to assess the evidence presented by both parties, including the nature of the alleged misconduct, the company's disciplinary procedures, and the overall context of the employment relationship.

After careful consideration of the evidence and arguments, the Commission found that the dismissal was indeed harsh, unjust, or unreasonable. The respondent failed to provide clear and substantiated evidence to support the allegations of misconduct and poor performance. Moreover, the timing of the dismissal and the respondent's handling of the performance management system raised concerns about procedural fairness. The Commission concluded that the respondent's actions demonstrated a lack of procedural justice and did not meet the threshold for a valid dismissal. Consequently, the application for relief from unfair dismissal was upheld.

The Fair Work Commission ordered that Patrick Paternott be reinstated to his position as sales manager with Plumbers Supplies Co-Operative Ltd, effective from the date of the dismissal. Additionally, the respondent was directed to pay Paternott's lost wages and entitlements from the date of dismissal until the effective date of reinstatement. The Commission also mandated that the respondent review and, if necessary, revise its disciplinary and performance management policies to ensure compliance with fair work principles. This decision underscores the importance of due process and the necessity for employers to substantiate claims of misconduct and poor performance before proceeding with dismissals.

Patrick Paternott v Plumbers Supplies Co-Operative Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established