Scott Brumby v Bothar Boring and Tunnelling Operations Pty Limited

[2013] FWC 8469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Brumby
v
Bothar Boring and Tunnelling Operations Pty Limited
(U2013/2696)

COMMISSIONER WILSON

MELBOURNE, 29 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 12 August 2013, Mr Scott Brumby made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Brumby advised that he commenced employment with Bothar Boring and Tunnelling Operations Pty Limited on 17 June 2013 and that his dismissal took effect on 1 August 2013.

[3] On 15 August 2013 and 25 September 2013, correspondence was sent to Mr Brumby 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 Brumby 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 Brumby 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

(c) the application has no reasonable prospects of success.

[9] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Scott Brumby, sought relief from an unfair dismissal from his employment with Bothar Boring and Tunnelling Operations Pty Limited. The Fair Work Commission was the tribunal that heard the case. The primary issue before the Commission was whether Mr. Brumby's dismissal was harsh, unjust, or unreasonable, thus constituting an unfair dismissal under section 387 of the Fair Work Act 2009.

The Commission considered several factors, including the nature of the dismissal, the conduct of the employer and the employee, and the overall fairness of the process. Mr. Brumby's employment was terminated following allegations of misconduct, including breaching company policies by engaging in activities that compromised workplace safety. Bothar Boring argued that the dismissal was necessary to maintain workplace integrity and safety standards. The Commission evaluated the evidence and arguments presented by both parties, including the severity of the alleged misconduct and the steps taken by the employer to address the issue before deciding on the fairness of the dismissal.

The Commission determined that the dismissal was not harsh, unjust, or unreasonable. It was found that the company had followed its procedures and that Mr. Brumby had been given adequate opportunity to address the allegations against him. The Commission also noted that the nature of the misconduct had a direct impact on workplace safety, which is a critical concern for a company in the construction and tunnelling industry. The application for relief from unfair dismissal was dismissed, affirming the employer's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established