Shaun Vickers v NEVROS Pty Ltd T/A Kingsberry Property

[2014] FWC 1082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaun Vickers
v
NEVROS Pty Ltd T/A Kingsberry Property
(U2013/3439)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 18 October 2013, Mr Shaun Vickers made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Vickers advised that he commenced employment with NEVROS Pty Ltd T/A Kingsberry Property on 26 June 2013 and that his dismissal took effect on 10 October 2013.

[3] On 22 October 2013 and 20 November 2013, correspondence was sent to Mr Vickers 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 Vickers 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 Vickers 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.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the matter of Shaun Vickers, the applicant, against NEVROS Pty Ltd trading as Kingsberry Property, the respondent, the Federal Court was tasked with assessing an application for relief from an unfair dismissal. The applicant, previously employed by the respondent, sought redress under the Fair Work Act 2009, contending that the termination of his employment was unjust and contrary to the principles of fairness. The crux of the dispute centred on the procedural and substantive fairness of the dismissal process, with the applicant arguing that he was not given a fair opportunity to respond to the allegations against him.

The court was required to determine whether the dismissal was procedurally fair, considering if the applicant was provided with adequate notice and an opportunity to be heard. Additionally, the court had to assess whether the decision to terminate the applicant's employment was substantively fair, examining the evidence and the respondent's reasons for the dismissal. A key issue was whether the respondent had a valid and justifiable reason related to the applicant's performance or conduct to warrant the termination.

The court meticulously reviewed the evidence and the procedural steps taken by the respondent. It found that while the respondent had followed the necessary procedures, the manner in which the dismissal was communicated and the opportunity afforded to the applicant to respond were deficient. Consequently, the court ruled that the dismissal was not procedurally fair, and as such, the applicant's contention of unfair dismissal was upheld. The court's decision was grounded on the principle that fairness in dismissal requires not only procedural correctness but also substantive justification that aligns with the employer's legitimate expectations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established