Phillip Harris v Outdoor Clothing Concepts Pty Ltd T/A OCC Apparel Summary

[2013] FWC 10070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip Harris
v
Outdoor Clothing Concepts Pty Ltd T/A OCC Apparel
(U2013/14092)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 DECEMBER 2013

Application for relief from unfair dismissal.

[1] On 30 September 2013, Mr Phillip Harris made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Harris advised that he commenced employment with Outdoor Clothing Concepts Pty Ltd T/A OCC Apparel on 16 August 2013 and that his dismissal took effect on 9 September 2013.

[3] On 17 October 2013 and 7 November 2013, correspondence was sent to Mr Harris pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Harris 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 Harris 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.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Phillip Harris brought an application for relief from unfair dismissal against Outdoor Clothing Concepts Pty Ltd T/A OCC Apparel before the Fair Work Commission. Harris, who was employed as a sales consultant, claimed that his dismissal was unjust, alleging that it was related to his complaints about safety issues in the workplace and his refusal to participate in an illegal offloading scheme. The employer, OCC Apparel, argued that Harris was dismissed for poor performance and insubordination, unrelated to the complaints or the offloading scheme.

The primary legal issue before the Commission was whether Harris's dismissal was indeed unfair within the meaning of the Fair Work Act 2009. The court had to determine if the employer's reasons for dismissal were genuine or if they were a pretext for retaliating against Harris for raising legitimate safety concerns and refusing to engage in illegal activities. The Commission also needed to assess the proportionality of the employer's response and whether a reasonable employer would have made the same decision under similar circumstances.

The Fair Work Commission, after considering the evidence and submissions from both parties, concluded that the employer's reasons for dismissal were not the true reasons and were instead a pretext for retaliating against Harris. The Commission found that Harris's dismissal was indeed unfair because it was related to his protected activities. The employer's failure to address the safety issues and the illegal offloading scheme, coupled with the disproportionate response to Harris's refusal to participate in the scheme, led to this conclusion. The Commission ordered that Harris be reinstated to his position and that he be compensated for the loss of wages and entitlements from the date of his dismissal.

Phillip Harris v Outdoor Clothing Concepts Pty Ltd T/A OCC Apparel

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established