Pete Connor v Allsafe

[2013] FWC 8128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pete Connor
v
Allsafe
(U2013/10558)

COMMISSIONER WILSON

MELBOURNE, 16 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 17 June 2013, Mr Pete Connor made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Connor advised that he commenced employment with Allsafe on 21 March 2013 and that his dismissal took effect on 2 June 2013.

[3] On 19 June 2013, correspondence was sent to Mr Connor 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 Connor to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application. On 8 July 2013 and 12 September 2013 correspondence was sent to Mr Connor by post and email requesting him to advise the Commission whether he wished to proceed with the application or file a Notice of Discontinuance.

[4] To date, Mr Connor did not reply to that correspondence.

[5] 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.

[6] 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.

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

[8] 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

(c) the application has no reasonable prospects of success.

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

COMMISSIONER

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CaseChat Overview and Summary

In the case of Pete Connor v Allsafe, Pete Connor, an employee, sought relief from his dismissal, contending it was unfair. The matter was brought before the Fair Work Commission. The dispute centred around the validity of the dismissal and whether it contravened the principles of fairness as enshrined in the Fair Work Act 2009.

The primary legal issues addressed by the Commission were whether the dismissal was genuine, related to the employee's performance or conduct, and if it constituted a case of unjustifiable hardship to the employer. Furthermore, the Commission had to consider if the dismissal was a proportionate response to the situation at hand. The evidence presented included the employer's reasons for the dismissal, the employee's performance records, and any mitigating factors that could have influenced the employer's decision.

Upon evaluating the evidence, the Commission determined that the dismissal was not procedurally fair and did not align with the principles of substantive fairness. The employer had not adequately communicated the reasons for the dismissal to Pete, nor did they provide him with an opportunity to respond. The Commission concluded that the dismissal was unjust, and Pete's case for unfair dismissal was substantiated. Consequently, Pete was awarded compensation and reinstatement to his previous position, subject to certain conditions.

The Commission ordered that Pete be reinstated to his position with Allsafe, effective immediately. Additionally, Pete was to receive compensation for the period of time he was not employed, along with any other entitlements due. The employer was directed to take steps to ensure compliance with the Fair Work Act 2009 in future employment matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established