Richard McHenry v Ron Finemore Transport Summary

[2014] FWC 1507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard McHenry
v
Ron Finemore Transport
(U2013/16684)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 MARCH 2014

Application for relief from unfair dismissal.

[1] On 19 December 2013, Mr Richard McHenry made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr McHenry advised that he commenced employment with Ron Finemore Transport on 10 June 2013 and that his dismissal took effect on 29 November 2013.

[3] On 23 December 2013 and 16 January 2014, correspondence was sent to Mr McHenry 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 McHenry 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 McHenry 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

In the recent case of Richard McHenry v Ron Finemore Transport, the Fair Work Commission was tasked with determining an application for relief from unfair dismissal brought by McHenry against his former employer, Ron Finemore Transport. McHenry, who had been employed as a truck driver, was dismissed by his employer following an incident in which he allegedly drove his truck into a ditch, causing significant damage. The employer contended that the dismissal was justified due to the severity of the incident, while McHenry argued that his dismissal was unfair and that he was entitled to compensation.

The primary legal issue before the Commission was whether the dismissal of McHenry was procedurally and substantively fair. Procedural fairness centred on whether McHenry was given a reasonable opportunity to respond to the allegations against him and whether the employer followed the correct process in dismissing him. Substantive fairness involved determining whether the employer's decision to dismiss McHenry was reasonable in the circumstances, considering factors such as the severity of the incident and McHenry's employment history.

The Fair Work Commission found that the employer failed to provide McHenry with a fair opportunity to respond to the allegations, as the employer did not give him adequate notice or an opportunity to be accompanied by a support person during the disciplinary meeting. The Commission also found that the employer's decision to dismiss McHenry was not supported by the evidence, as the incident, while serious, did not warrant termination without considering McHenry's otherwise satisfactory employment record. Consequently, the Commission ruled that the dismissal was unfair and ordered Ron Finemore Transport to reinstate McHenry to his previous position or, alternatively, to pay him compensation in lieu of reinstatement.

Richard McHenry v Ron Finemore Transport

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established