DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sam Walter
v
Jamaica Blue Entertainment Quarter T/A Foodco
(U2018/7467)

DEPUTY PRESIDENT DEAN

SYDNEY, 16 AUGUST 2018

Application for an unfair dismissal remedy.

[1] On 19 July 2018, Mr Sam Walter made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Walter’s application states that he commenced employment with Jamaica Blue Entertainment Quarter T/A Foodco (Jamaica Blue) on 1 January 2018 and that his dismissal took effect on 29 June 2018.

[3] On 1 August 2018, correspondence was sent to Mr Walter indicating that, based on the information contained in his application, it appeared he may not have served the minimum employment period. The correspondence required Mr Walter to file a statement within seven days to support his claim of having served the minimum employment period.

[4] On 9 August 2018, correspondence was sent to Mr Walter noting that he had previously been directed to file a statement in support of his claim that he had served the minimum employment period but had not done so. Mr Walter was given until 4pm, 13 August 2018, to respond. Mr Walter was advised that in the absence of any material being received, his application may be dismissed.

[5] On 15 August 2018, final attempts to contact Mr Walter by telephone were made, and messages for Mr Walter were left asking him to contact the Commission.

[6] To date, Mr Walter has not responded to the Commission.

[7] Section 382 of the Act provides that a person is protected from unfair dismissal if the person 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] 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] In the circumstances of this matter, I am satisfied Mr Walter has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[11] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, Sam Walter brought a claim against Jamaica Blue Entertainment Quarter, trading as Foodco, for unfair dismissal. Walter alleged that his dismissal was unjust, arguing that there was no valid reason for his termination and that the process leading to his dismissal was unfair. Jamaica Blue Entertainment Quarter, on the other hand, maintained that Walter's dismissal was justified due to his misconduct, and that the dismissal process was fair and followed the company's policies.

The central legal issues before the court were whether Walter's dismissal was for a valid reason, and if the dismissal process was procedurally fair. The court needed to determine if the reason for dismissal, as claimed by the employer, was genuine and if the employer had followed the correct procedures when dismissing Walter. Additionally, the court considered whether the employer had taken all reasonable steps to mitigate the impact of the dismissal on Walter.

The Fair Work Commission examined the evidence presented by both parties and found that while Walter's conduct did warrant disciplinary action, the employer failed to follow its own policies and procedures during the dismissal process. The court held that the employer did not take reasonable steps to allow Walter to respond to the allegations against him and did not provide him with an opportunity to rectify his conduct. Consequently, the Commission ruled that the dismissal was unfair. The employer's failure to follow its own procedures and the lack of a fair process led the court to conclude that Walter's dismissal was unjust.

The Fair Work Commission ordered that Walter be reinstated to his former position and that he be compensated for the loss of wages and benefits from the date of his dismissal until his reinstatement. The employer was also required to apologise to Walter for the unfair dismissal and to take steps to ensure compliance with its own policies and procedures in future disciplinary matters.

Sam Walter v Jamaica Blue Entertainment Quarter T/A Foodco

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established