DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Day
v
Leading Support Solutions
(U2015/13064)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 30 OCTOBER 2015

Application for relief from unfair dismissal.

[1] On 22 September 2015, Mr Ross Day made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Day advised that he commenced employment with Leading Support Solutions on 20 July 2015 and that his dismissal took effect on 2 September 2015.

[3] On 23 September 2015, correspondence was sent to Mr Day 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 Day to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 28 September 2015, the Commission attempted to contact Mr Day, the call was not answered and a voice message was left.

[5] On 14 October 2015, further correspondence was sent to Mr Day allowing a further 14 days in which to reply. He was advised that unless advice was received by the Commission within 14 days his application would be dismissed. On the same date, the Commission attempted to contact Mr Day by telephone however the call was unanswered.

[6] To date, Mr Day has not replied to any correspondence.

[7] 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.

[8] 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.

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

[10] 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

[11] 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

Ross Day, an employee, brought an application for relief from unfair dismissal against Leading Support Solutions, his former employer. Day alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with examining the validity of Day's claims.

The court needed to determine whether Day's dismissal was indeed unfair under the statutory framework. This required an analysis of whether the termination was harsh, unjust, or unreasonable, and whether there was a valid reason related to the employee's capabilities or conduct. The court had to consider the specific circumstances of Day's employment, including his tenure, the nature of the dismissal, and the employer's justifications, if any, for the termination.

The court evaluated the evidence presented by both parties, focusing on the employer's reasons for dismissal and the procedural fairness observed. It found that Leading Support Solutions had not provided adequate justification for the dismissal, and the process lacked procedural fairness. Consequently, the court ruled in favour of Day, finding that his dismissal was unfair. The decision underscored the importance of employers adhering to fair procedures and providing reasonable justification for dismissals to avoid similar outcomes in the future.

Ross Day v Leading Support Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established