| [2022] FWC 1185 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter David Bostock
v
Austmont Pty Ltd
(U2022/2707)
| COMMISSIONER MATHESON | SYDNEY, 16 MAY 2022 |
Application for an unfair dismissal remedy – Applicant unable to perform inherent requirements of his role – valid reason for dismissal – no notification of reason for dismissal – no opportunity to respond to reason for dismissal – procedural fairness considerations – length of service – Applicant unfairly dismissed – reinstatement inappropriate – compensation ordered.
On 3 March 2022, Peter David Bostock (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Austmont Pty Ltd (Respondent). The Applicant seeks financial compensation.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Background
The uncontested factual background to the matter is as follows:
· The Applicant began working for the Respondent on 8 March 1989.
· In March 2021, the Respondent advised the Applicant that the Respondent had received an anonymous complaint against the Applicant which would be investigated. The Respondent found the complaint was not substantiated, however the parties do not agree upon the date that the Applicant was advised of this.
· The Applicant became unwell and went on leave from…
Continue reading Peter David Bostock v Austmont Pty Ltd
Sign in free to access the full text
- AGLC
- Peter David Bostock v Austmont Pty Ltd [2022] FWC 1185
- Case
- [2022] FWC 1185
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.