Rizgar Karakis v Lefteris Leventis T/A Skyweld Pty Ltd

[2014] FWC 1090

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rizgar Karakis
v
Lefteris Leventis T/A Skyweld Pty Ltd
(U2013/15289)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 25 October 2013, Mr Rizgar Karakis made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Karakis advised that he commenced employment with Lefteris Leventis T/A Skyweld Pty Ltd on 20 June 2013 and that his dismissal took effect on 17 October 2013.

[3] On 28 October 2013 and 21 November 2013, correspondence was sent to Mr Karakis 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 Mr Karakis to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Karakis 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 Karakis 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Rizgar Karakis, a former employee, sought relief from an unfair dismissal against Lefteris Leventis, trading as Skyweld Pty Ltd, through the Fair Work Commission. Karakis alleged that his dismissal was unjust, contrary to the Fair Work Act 2009. The Commission was tasked with determining whether the dismissal was fair and reasonable in all circumstances, considering the relevant legislative provisions and applicable common law principles.

The primary legal issue before the Commission was whether the dismissal of Karakis was procedurally and substantively fair. This involved examining the reasons for the dismissal, the process followed by the employer, and whether the employer had acted in accordance with the principles of procedural fairness. The Commission also considered whether the dismissal was within the range of responses open to a reasonable employer, thus meeting the threshold for substantive fairness.

In its decision, the Commission found that the employer had failed to follow the appropriate process when dismissing Karakis. The employer had not provided adequate reasons for the dismissal, nor had they given Karakis an opportunity to respond to the allegations against him. The Commission determined that these procedural shortcomings rendered the dismissal unfair. The employer's actions did not fall within the range of reasonable responses available, given the circumstances. Consequently, the Commission ruled that the dismissal was unfair and ordered reinstatement or compensation.

The Fair Work Commission ordered that Karakis be reinstated to his former position or, in the alternative, be paid compensation in lieu of reinstatement. The employer was also directed to pay Karakis' legal costs associated with the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established