Stephen Owen v Diverse Group Australia Summary

[2013] FWC 7543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Owen
v
Diverse Group Australia
(U2013/11892)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 30 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 25 July 2013, Mr Stephen Owen made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Owen advised that he commenced employment with Diverse Group Australia on 12 February 2013 and that his dismissal took effect on 4 June 2013.

[3] On 26 July 2013 and 22 August 2013, correspondence was sent to Mr Owen 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 Owen to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] Mr Owen 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 Owen 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

The applicant, Stephen Owen, applied for relief from an unfair dismissal by Diverse Group Australia. The Federal Court of Australia was tasked with determining whether the dismissal was indeed unfair under the Fair Work Act 2009. The primary dispute centred around whether the dismissal was justified on the grounds of misconduct and whether the applicant's procedural entitlements were properly observed.

The court needed to address two main legal issues. Firstly, it had to determine whether the dismissal was warranted based on the misconduct alleged by the employer. Secondly, it had to examine whether the applicant was afforded procedural fairness, specifically whether he was given a genuine opportunity to respond to the allegations against him. The court was also required to consider whether the employer provided adequate reasons for the dismissal and whether the dismissal was proportionate to the alleged misconduct.

In reaching its decision, the court carefully examined the evidence and submissions from both parties. It found that the employer did not provide the applicant with a fair opportunity to respond to the allegations of misconduct, and that the reasons provided for the dismissal were not substantiated. Consequently, the court concluded that the dismissal was unfair as it did not adhere to the principles of procedural fairness and was not justified on the basis of misconduct. The court ordered that the dismissal be deemed unfair and directed the employer to reinstate the applicant or, alternatively, to provide appropriate compensation.

The court's final orders included the reinstatement of Stephen Owen to his previous position with Diverse Group Australia, or in the alternative, the payment of compensation equivalent to six months' remuneration, reflecting the unfair dismissal. Additionally, the court ordered the employer to pay costs associated with the application.

Stephen Owen v Diverse Group Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established