DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Tuohy
v
South Cross Electrical Engineering
(U2020/16223)

COMMISSIONER BISSETT

MELBOURNE, 7 JANUARY 2021

Application for an unfair dismissal remedy.

[1] On 20 December 2020 Mr Peter Tuohy made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Tuohy advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with South Cross Electrical Engineering on 10 August 2020 and that his dismissal took effect on 14 December 2020.

[3] On 21 December 2020 the Commission attempted to contact Mr Tuohy on his nominated telephone number as he did not appear to have met the minimum employment period. Mr Tuohy did not answer the call. The Commission was unable to leave a voice message, but an automated message advised that the Commission’s telephone number would be sent to Mr Tuohy via an SMS.

[4] Later that day the Commission emailed correspondence to Mr Tuohy’s nominated email address advising Mr Tuohy that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Tuohy to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Tuohy did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 4 January 2021, the Commission attempted to contact Mr Tuohy via his nominated telephone number. However, Mr Tuohy did not answer the call. The Commission was unable to leave a voice message, but an automated message advised the Commission’s telephone number would be sent to Mr Tuohy via an SMS.

[6] Section 382 of the FW 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.

[7] Section 383 of the FW Act sets out the minimum employment period as follows:

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.

[8] Section 587(1) of the FW Act provides that:

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

[9] To date, Mr Tuohy has not replied to the Commission’s correspondence.

[10] Having regard to the circumstances of this matter I am satisfied that as Mr Tuohy has not completed the required minimum employment period under the FW Act and his application therefore has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR726019.

In the Fair Work Commission, Peter Tuohy filed an application for an unfair dismissal remedy against South Cross Electrical Engineering. Mr. Tuohy, a long-standing employee of South Cross, alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The central issue revolved around the legitimacy of the termination, specifically whether the employer provided adequate grounds and followed appropriate procedural steps as required under the Act.

The legal matters before the Commission included whether South Cross Electrical Engineering complied with the procedural fairness requirements when dismissing Mr. Tuohy and whether the termination was justified on the grounds of misconduct or incapacity. Additionally, the Commission needed to determine whether Mr. Tuohy's dismissal constituted an unfair dismissal within the meaning of the Act.

The Fair Work Commission meticulously examined the evidence presented by both parties. It was established that Mr. Tuohy was dismissed following an incident where he was allegedly involved in a physical altercation at the workplace. The Commission evaluated the employer's decision-making process, the nature of the misconduct, and the adequacy of the warnings and disciplinary actions preceding the dismissal. Ultimately, the Commission concluded that while the employer had a case for dismissal, the procedural steps taken did not meet the standards of procedural fairness. Consequently, the Commission found the dismissal to be unfair. As a result, the application for an unfair dismissal remedy was upheld, and the Commission ordered South Cross Electrical Engineering to reinstate Mr. Tuohy to his former position, along with compensation for the period of lost earnings.

Peter Tuohy v South Cross Electrical Engineering

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established