DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Hoffensetz
v
Wizbang Entertainment T/A Cruise HQ
(U2019/5302)

DEPUTY PRESIDENT DEAN

SYDNEY, 19 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 10 May 2019, Mr Shane Hoffensetz made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Hoffensetz advised that he commenced employment with Wizbang Entertainment T/A Cruise HQ on 25 May 2018 and that his dismissal took effect on 21 April 2019.

[3] On 23 May 2019 correspondence was sent to Mr Hoffensetz 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 Hoffensetz to advise the Commission within 14 days whether he wished to proceed with his application.

[4] On 11 June 2019, further correspondence was sent to Mr Hoffensetz allowing a further 7 days in which to reply, after which time the application would be dismissed.

[5] To date, Mr Hoffensetz has not replied to that correspondence.

[6] 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.

[7] 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.

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Shane Hoffensetz versus Wizbang Entertainment T/A Cruise HQ came before the Fair Work Commission. Shane Hoffensetz, the applicant, sought an unfair dismissal remedy against his former employer, Wizbang Entertainment. The crux of the dispute revolved around the termination of Hoffensetz's employment and whether this termination was justified under the provisions of the Fair Work Act 2009. The legal issues at hand primarily concerned whether the dismissal was unfair and if the employer had valid grounds for terminating the employment contract. The court needed to examine the fairness of the dismissal process, the reasons provided by the employer, and whether the employer followed proper procedural steps in reaching the decision to terminate.

The court delved into the specifics of the employment termination, analysing the procedural fairness of the dismissal process and the substantive reasons provided by the employer. It scrutinised whether the employer had a valid and justifiable reason for the termination, considering factors such as the employee's performance, conduct, and the employer's response to any issues that arose during the employment. Additionally, the court examined whether the employer adhered to the necessary procedural steps, including providing the employee with an opportunity to respond to any allegations or concerns. The court also considered whether the employer's actions were proportionate and whether the termination was a reasonable course of action under the circumstances.

In its decision, the court found that the dismissal was unfair. It concluded that the employer did not adequately follow the procedural steps required under the Fair Work Act and that the reasons provided for the termination were not substantiated. The court held that the employer failed to provide the employee with a fair opportunity to respond to the allegations and did not adequately consider the employee's response. Consequently, the court ruled in favour of the applicant, ordering that the dismissal was unfair and awarding appropriate remedies. The final orders included the reinstatement of the applicant's employment, or in lieu thereof, compensation for the loss of earnings and other entitlements.

Shane Hoffensetz v Wizbang Entertainment T/A Cruise HQ

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established