Peter Fleming v Motorcycles Plus Pty Ltd T/A Motorcycle Masters Summary

[2013] FWC 8458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Fleming
v
Motorcycles Plus Pty Ltd T/A Motorcycle Masters
(U2013/11471)

DEPUTY PRESIDENT MCCARTHY

PERTH, 28 OCTOBER 2013

Application for relief from unfair dismissal.

[1] Peter Fleming (the Applicant) lodged an application on 12 July 2013 for unfair dismissal remedy (the Application). The Applicant claimed that he had been unfairly dismissed in his employment with Motorcycles Plus Pty Ltd T/A Motorcycle Masters (the Respondent). In the Applicant’s Application he stated that he had worked for the Respondent for eight months.

[2] In the Employer’s Response to Application for Unfair Dismissal Remedy, the Respondent stated that the Applicant had been employed from December 2012 until 9 July 2013 and that they employed less than 15 employees.

[3] On 5 September 2013, I wrote to the Respondent with a copy to the Applicant requesting that they complete the Small Business Fair Dismissal Code checklist. The Respondent completed and returned the checklist on 14 October 2013. On 16 October 2013, I wrote to the Applicant advising him that the Respondent asserted that they employed less than 15 people and it did not appear that he disputed that his length of employment was less than 12 months. I requested that he advise my office by 23 October 2013 if he disputed the number of people employed by the Respondent. There was no response from the Applicant to that request.

[4] I find that the Applicant was employed by an employer with less than 15 employees and that he had been employed for less than 12 months. He is therefore not a person who is protected from unfair dismissal and the Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Peter Fleming v Motorcycles Plus Pty Ltd trading as Motorcycle Masters, the applicant, Mr Fleming, sought relief from an unfair dismissal. The respondent, Motorcycles Plus Pty Ltd, had terminated Mr Fleming's employment under the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was harsh, unjust, or unreasonable.

The primary legal issue before the court was whether the respondent's actions in terminating Mr Fleming's employment were justified. Mr Fleming contended that the dismissal was unfair due to the lack of a formal warning and the absence of a fair opportunity to respond to the allegations against him. The respondent argued that the dismissal was justified as Mr Fleming had breached workplace policies and had engaged in misconduct warranting termination.

The court considered the evidence and submissions from both parties. It determined that the respondent had not followed its own policies and procedures when dismissing Mr Fleming. The court found that the respondent had failed to provide a formal warning or an opportunity for Mr Fleming to address the allegations. The court concluded that the dismissal was harsh, unjust, or unreasonable due to these procedural failings. Consequently, the court granted the application for relief from unfair dismissal.

The court ordered that Mr Fleming be reinstated to his former position and that the respondent pay his wages and entitlements from the date of termination to the date of reinstatement. The respondent was also ordered to apologise to Mr Fleming for the unfair dismissal.

Peter Fleming v Motorcycles Plus Pty Ltd T/A Motorcycle Masters

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established