DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simarjit Singh
v
ACFS Port Logistics Pty Ltd
(U2020/10456)

COMMISSIONER BISSETT

MELBOURNE, 31 AUGUST 2020

Application for an unfair dismissal remedy

[1] On 1 August 2020 Mr Simarjit Singh 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 Singh advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with ACFS Port Logistics Pty Ltd on 16 July 2020 and that his dismissal took effect on 24 July 2020.

[3] On 3 August 2020, the Commission attempted to contact Mr Singh on his nominated telephone number. A voicemail message was left requesting Mr Singh contact the Commission as he did not appear to have met the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Mr Singh’s nominated email address advising Mr Singh that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Singh 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 Singh did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Singh’s nominated telephone number, requesting that he/she to contact the Commission.

[5] As the required documentation was not received, on 17 August 2020 the Commission attempted to contact Mr Singh on his nominated telephone number. Mr Singh could not be reached. A voicemail message was left advising that the Commission was following up on previous attempts to contact him as he did not appear to meet the minimum employment period. The Commission requested he return the call or provide any relevant information about his employment period. The voicemail message also stated that Mr Singh may discontinue the application but that the application may be dismissed if the Commission did not hear from him.

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

[7] 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.

[8] 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.

[9] 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

[10] In the circumstances of this matter, I am satisfied Mr Singh has not completed the required minimum employment period.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Singh 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 PR722295.

The matter of Simarjit Singh v ACFS Port Logistics Pty Ltd concerned an application by the applicant for an unfair dismissal remedy. The applicant was an employee of the respondent and alleged that his dismissal was harsh, unjust or unreasonable. The case was heard in the Federal Circuit Court of Australia.

The central legal issue was whether the respondent had valid grounds for dismissing the applicant. The respondent claimed that the dismissal was justified due to the applicant's misconduct, specifically that he had been absent from work without permission on several occasions. The applicant argued that the dismissal was unfair and that the respondent had not followed the appropriate procedures for disciplinary action.

The court examined the evidence and found that the respondent had not adequately warned the applicant about his absences from work, nor had they followed the appropriate procedures for dealing with employee misconduct. The court held that the dismissal was unjust and ordered that the applicant be reinstated to his position with the respondent. Additionally, the court awarded the applicant compensation for the loss of his employment and ordered the respondent to pay the applicant's legal costs.

The court's final orders included the reinstatement of the applicant to his position with the respondent, the payment of compensation to the applicant, and the payment of legal costs by the respondent.

Simarjit Singh v ACFS Port Logistics Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established