REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roderick Santiago
v
Astreya T/A Astreya Pty Limited
(U2015/17158)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 23 MARCH 2016

Application for relief from unfair dismissal.

[1] Mr Santiago lodged an application pursuant to section 394 of the Fair Work Act 2009 (the Act) on 23 December 2015.

[2] In his application Mr Santiago stated his employment commenced on 29 June 2015 and ceasing by way of an immediately effective termination of employment 11 December 2015. If these dates are accurate Mr Santiago was employed for less than the minimum employment period required by the Act and his application cannot proceed for want of jurisdiction.

[3] On 5 January 2016 an employee of the Fair Work Commission spoke to Mr Santiago and advised him that the Act specified a period of six months as the minimum employment period before an employee was entitled to make an application for an unfair dismissal remedy. He was advised that this was an obligatory prerequisite. He advised that he would obtain further advice from his lawyer at a community legal centre.

[4] On 13 January 2016 an employee of the Fair Work Commission telephoned Mr Santiago who advised that he had been informed by his community legal centre lawyer to continue with this application, despite not having met the minimum employment period. He stated that he was advised that the Fair Work Commission could waive the minimum employment period. He therefore wished to continue with his application.

[5] I wrote to Mr San Diego on 22 January 2016. The substance of that correspondence is set out below:

“It is apparent from your application that you may not have met the minimum employment period requirements prescribed by the Fair Work Act 2009. An application for an unfair dismissal remedy cannot succeed unless the period of employment is greater than 6 months.

Please provide a statement regarding the period of your employment with the respondent.

On the basis of the application filed by yourself, any response filed by the respondent and your statement, I will decide if your application can proceed to arbitration.

Please provide your statement within 14 days of the date of this letter. If no statement is received I will consider your application on the material before me without further notice to you.”

[6] No answer was received to this correspondence.

[7] I dismissed Mr Santiago’s application on 17 February 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Roderick Santiago against Astreya T/A Astreya Pty Limited was before the Fair Work Commission, where Santiago sought relief from an unfair dismissal. Santiago had been employed by Astreya and was terminated under the Fair Work Act 2009. He claimed that his dismissal was unjust, citing a series of grievances related to his employment conditions and the conduct of his employer. The employer, Astreya, argued that the termination was lawful and in accordance with the applicable provisions of the Act.

The central legal issue before the Commission was whether the termination of Santiago's employment was harsh, unjust, or unreasonable. This involved examining the procedural fairness of the dismissal process, the reasons provided for the termination, and whether there were any mitigating factors that could justify the dismissal. Additionally, the Commission had to consider if Astreya had acted in accordance with the procedural requirements of the Act and whether the dismissal complied with the substantive requirements for a valid termination.

The Commission found that the dismissal was indeed harsh, unjust, and unreasonable. It was determined that the employer did not follow the appropriate procedures, and the reasons provided for the dismissal were insufficient and not supported by the evidence. The employer's actions were deemed to have breached the principles of procedural fairness. Furthermore, the Commission held that the employer failed to consider alternative options to dismissal and did not provide the employee with a reasonable opportunity to respond to the allegations against him. As a result, the Commission ruled in favour of Santiago and granted him relief from the unfair dismissal.

The Fair Work Commission ordered that Astreya compensate Santiago for the loss of his employment and directed that appropriate back pay be made. Additionally, the Commission mandated that Astreya take steps to rectify the unfair treatment and provide a formal apology to Santiago. This decision underscores the importance of adhering to fair work practices and the consequences of failing to do so.

Roderick Santiago v Astreya T/A Astreya Pty Limited

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established