DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Dennison
v
Nelsons of Bridgetown T/A Valadon
(U2016/7048)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 6 JUNE 2016

Application for relief from unfair dismissal.

[1] On 19 May 2016, Mr Robert Dennison made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Mr Dennison advised that he commenced employment with Nelsons of Bridgetown T/A Valadon on 1 December 2015 and that his dismissal took effect on 29 April 2016.

[3] On 23 May 2016, correspondence was sent to Mr Dennison pointing out that on the basis of the information contained in the application, he had not served the minimum employment period.

[4] On 6 June 2016, my chambers contacted Mr Dennison who confirmed he started work on 1 December 2015 and was dismissed on 29 April 2016.

[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 Dennison 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

[9] Consequently, the application is dismissed under section 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

Robert Dennison sought relief from unfair dismissal against his former employer, Nelsons of Bridgetown T/A Valadon. The dispute centred on the validity of the dismissal following the employee's refusal to comply with an instruction to perform work outside his employment contract. The Fair Work Commission heard the case, tasked with determining whether the dismissal was justified, and if not, what relief should be granted.

The primary legal issue was whether the dismissal was procedurally fair and whether it was justified on the basis of the employer's conduct. The employee argued that the dismissal was unfair as it was based on his refusal to perform work that was not part of his employment contract, while the employer contended that the refusal amounted to misconduct warranting dismissal. The Commission needed to assess whether the employer had a valid reason to dismiss the employee and whether the correct procedures were followed.

The Fair Work Commission found that the dismissal was not procedurally fair as the employer did not provide the employee with an opportunity to respond to the alleged misconduct. Additionally, the Commission determined that the employer's reason for dismissal was not justified as the employee's refusal to perform the additional work was reasonable under the circumstances. Consequently, the Commission ruled that the dismissal was unfair and ordered reinstatement along with compensation for lost earnings.

Robert Dennison v Nelsons of Bridgetown T/A Valadon

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established