Robert Gibbin v ELN Ford Summary

[2014] FWC 5182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Gibbin
v
ELN Ford
(U2014/10253)

COMMISSIONER WILSON

MELBOURNE, 31 JULY 2014

Application for relief from unfair dismissal.

[1] On 23 June 2014, Mr Robert Gibbin made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Gibbin advised that he commenced employment with ELN Ford on 12 February 2014 and that his dismissal took effect on 13 June 2014.

[3] On 2 July 2014, correspondence was sent to Mr Gibbin pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Gibbin to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 16 July 2014, further correspondence was sent to Mr Gibbin allowing an additional 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Mr Gibbin did not reply to that correspondence.

[6] 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.

[7] 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.

[8] In the circumstances of this matter, I am satisfied Mr Gibbin has not completed the required minimum employment period and his application has no reasonable prospects of success.

[9] 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.

[10] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Robert Gibbin sought relief from unfair dismissal in the Fair Work Commission against ELN Ford. The applicant, a former employee of ELN Ford, claimed that his dismissal was unfair and contrary to the principles outlined in the Fair Work Act 2009. ELN Ford, the respondent, argued that the dismissal was justified under the provisions of the Act, asserting that it was based on genuine performance-related grounds.

The central legal issues before the Commission were whether the dismissal was procedurally fair and whether it constituted a case of unfair dismissal. The procedural fairness centred on whether ELN Ford provided the applicant with adequate notice, an opportunity to respond to the allegations, and a fair hearing. The substantive fairness focused on whether the reasons for dismissal were valid and whether the decision to dismiss was proportionate to the alleged misconduct.

The Commission found that the dismissal was procedurally unfair as the applicant was not given a fair opportunity to respond to the allegations against him. ELN Ford failed to provide adequate notice and did not allow the applicant to present his side of the story. Furthermore, the Commission determined that the dismissal was substantively unfair as the reasons provided by ELN Ford were not supported by the evidence and did not justify the severity of the dismissal. Consequently, the Fair Work Commission ruled that the dismissal was unfair and ordered reinstatement and compensation to the applicant.

Robert Gibbin v ELN Ford

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established