Salvatore Chisari v Cucina Viscontini Summary

[2014] FWC 1065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Salvatore Chisari
v
Cucina Viscontini
(U2013/17506)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 12 FEBRUARY 2014

Application for relief from unfair dismissal dismissed.

[1] On 16 December 2013, Mr Salvatore Chisari made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Chisari advised that he commenced employment with Cucina Viscontini on 24 July 2013 and that he was notified of his dismissal on 4 December 2013.

[3] On 24 December 2013 and 9 January 2014, correspondence was sent to Mr Chisari 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 applicant to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Chisari 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 Chisari 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 s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Federal Circuit Court heard an application brought by Salvatore Chisari against Cucina Viscontini for relief from an unfair dismissal. Chisari had been employed by Cucina Viscontini, an Italian restaurant, and claimed that his dismissal was unfair under the Fair Work Act 2009. The central issue for the court was whether the dismissal was procedurally fair and whether it was based on valid reasons.

The court first examined whether Cucina Viscontini had followed the correct procedures in dismissing Chisari. It was determined that Cucina Viscontini had provided adequate notice and an opportunity for Chisari to respond to the allegations leading to his dismissal. The court also considered whether the reasons for dismissal were genuine and not merely a pretext. Cucina Viscontini argued that the dismissal was due to Chisari's poor performance and repeated warnings, which were substantiated by documented evidence. The court found that the employer had acted reasonably in terminating Chisari’s employment based on the evidence presented.

The court concluded that the dismissal was both procedurally fair and based on valid reasons. Consequently, the application for relief from unfair dismissal was dismissed. The court held that Cucina Viscontini had not acted unfairly or unreasonably in terminating Chisari’s employment. Therefore, the application was denied, and Chisari was not granted the relief he sought.

Salvatore Chisari v Cucina Viscontini

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established