DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Blake
v
Parkside Group timber Milling Nannup
(U2020/14947)

COMMISSIONER BISSETT

MELBOURNE, 7 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 17 November 2020, Mr Scott Blake made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Blake advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Parkside Group Timber Milling Nannup on 18 June 2020 and that his dismissal took effect on 5 November 2020.

[3] On 18 November 2020, the Commission attempted to contact Mr Blake on his nominated telephone number in relation to his application. A voicemail message was left advising Mr Blake that it did not appear that he had served the minimum employment period necessary to make an application.

[4] Later that day, the Commission emailed correspondence to Mr Blake’s nominated email address advising Mr Blake that, based on the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Blake to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also warned that if Mr Blake did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] On the same day, the Applicant called the Commission’s helpline checking the status of his application. It was confirmed that the Applicant worked less than six months with the Respondent. The Applicant was advised that he had not served the minimum employment period and that the Applicant may wish to discontinue his application or if he wished to proceed, he must demonstrate that he had served the minimum employment period. The Applicant hung up the call before further information could be provided to him

[6] As the required documentation was not received, on 30 November 2020 the Commission attempted to contact Mr Blake on his nominated telephone number. However, Mr Blake could not be reached. A voicemail message was left requesting that he contact the Commission.

[7] To date, Mr Blake has not replied to the Commission’s correspondence.

[8] Section 382 of the FW 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.

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

[10] Section 383 of the FW Act sets out the minimum employment period as follows:

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.

[11] Section 587(1) of the FW Act provides that:

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

[12] Having regard to the circumstances of this matter I am satisfied that as Mr Blake has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR725184

The case involved Scott Blake, the applicant, who sought an unfair dismissal remedy against Parkside Group Timber Milling Nannup, the respondent. The dispute arose from the termination of Blake's employment by the respondent. The matter was heard in the Fair Work Commission, where the applicant sought to challenge the fairness of his dismissal. The primary issue before the Commission was whether the respondent's decision to terminate Blake's employment was justified and met the criteria for a fair dismissal. Specifically, the Commission needed to determine if the respondent had a valid reason related to Blake's performance or conduct, if the respondent followed a fair process, and if the termination was a reasonable action in the circumstances.

The Commission considered evidence from both parties, including the respondent's reasons for termination and Blake's response. The respondent argued that the termination was due to Blake's unsatisfactory performance and conduct, which included absenteeism and poor work performance. Blake, on the other hand, contended that the termination was unjust and that he had been subjected to bullying and harassment by the respondent. The Commission carefully evaluated the evidence and arguments presented, focusing on the procedural fairness of the termination process and the adequacy of the respondent's reasons. The Commission also examined whether the respondent had taken reasonable steps to address Blake's performance issues before resorting to termination.

After considering the evidence, the Commission found that the respondent had a valid reason to terminate Blake's employment, as his performance and conduct issues were well-documented and had been addressed through warnings and discussions. However, the Commission also found that the respondent failed to follow a fair process in terminating Blake's employment, as it did not provide him with an opportunity to respond to the allegations or to improve his performance. Consequently, the Commission determined that the termination was unfair and ordered the respondent to reinstate Blake to his position and pay him compensation for the period of unlawful termination.

Scott Blake v Parkside Group timber Milling Nannup

DECISION

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Legal Principle Established