DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Marc Ashley Cardiff
v
Adelaide Educators Pty Ltd T/A Adelaide College Of Technical Education
(U2018/10409)

DEPUTY PRESIDENT DEAN

SYDNEY, 6 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 9 October 2018, Mr Peter Cardiff made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Cardiff states that he commenced employment with Adelaide Educators Pty Ltd T/A Adelaide College Of Technical Education (Adelaide Educators) in April 2018 and that his dismissal took effect on 26 September 2018.

[3] On 17 October 2018, Adelaide Educators filed an Employers Response (form F3) objecting to the application on the grounds that Mr Cardiff had not met the minimum employment period. Adelaide Educators submits that Mr Cardiff commenced work on 30 April 2018, and that it is a small business with fewer than 15 employees at the time of Mr Cardiff’s termination.

[4] On 22 November 2018, correspondence was sent to Mr Cardiff indicating that, based on the information contained in the Employer Response, it appeared he may not have served the minimum employment period. The correspondence required Mr Cardiff to file a statement within seven days to support his claim of having served the minimum employment period.

[5] On 30 November 2018, correspondence was sent to Mr Cardiff noting that he had previously been directed to file a statement in support of his claim that he had served the minimum employment period but had not done so. Mr Cardiff was given until 4pm on
4 December 2018 to respond. Mr Cardiff was advised that in the absence of any material being received, his application may be dismissed.

[6] Further attempts were made to contact Mr Cardiff by telephone on 30 November and 5 December 2018.

[7] To date, Mr Cardiff has not responded to the Commission.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if the person 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] 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.

[11] In the circumstances of this matter, I am satisfied Mr Cardiff has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Peter Marc Ashley Cardiff versus Adelaide Educators Pty Ltd trading as Adelaide College of Technical Education, the Fair Work Commission was tasked with determining whether Mr Cardiff's dismissal was unjust. Mr Cardiff, an employee of the respondent, sought relief for unfair dismissal. The respondent, a private educational institution, argued that the dismissal was justified due to the nature of the misconduct and the severity of the breach of policy.

The legal issues before the Commission revolved around whether Mr Cardiff's actions constituted grounds for dismissal, specifically if his conduct amounted to serious misconduct. Additionally, the Commission had to consider whether the respondent had followed its own policies and procedures correctly in handling the dismissal and whether the dismissal was proportionate to the offence. The respondent argued that Mr Cardiff's behaviour during an incident with a student constituted serious misconduct, justifying termination without notice. Mr Cardiff contended that his actions did not warrant such a severe penalty and that the respondent did not follow its own procedures.

The Commission examined the evidence presented by both parties, focusing on the details of the incident and the respondent's disciplinary process. It was determined that Mr Cardiff's actions did indeed breach the respondent's policies, but the Commission found that the penalty of dismissal was excessive given the circumstances. The respondent's failure to follow its own procedures was also a significant factor in the decision. Consequently, the Commission ruled that the dismissal was unfair and ordered that Mr Cardiff be reinstated to his position, along with compensation for the period of unjust dismissal.

Peter Marc Ashley Cardiff v Adelaide Educators Pty Ltd T/A Adelaide College of Technical Education

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established