DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Hardman
v
R T Rossi Enterprises Pty Ltd T/A R T Rossi Enterprises Pty Ltd
(U2016/6030)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 2 JUNE 2016

Application for relief from unfair dismissal.

[1] On 7 April 2016, Mr Steven Hardman made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Hardman advised that he commenced employment with R T Rossi Enterprises Pty Ltd T/A R T Rossi Enterprises Pty Ltd in November 2015 and that his dismissal took effect on 25 March 2016.

[3] On 11 April 2016, the Fair Work Commission contacted Mr Hardman’s representative and advised that on the basis of the information contained in the application, he had not served the minimum employment period. On the same date, the Commission sent email correspondence confirming the advice to Mr Hardman and his representative. The correspondence required Mr Hardman to advise the Commission within 14 days whether he wished to proceed with his application.

[4] On 27 April 2016, the Commission attempted to contact Mr Hardman and his representative and the calls were not answered.

[5] On 6 May 2016, the Commission attempted to contact Mr Hardman’s representative and the call was not answered and on the same date the Commission sent email correspondence allowing a further 7 days in which to reply, after which time the application would be dismissed.

[6] On 17 May 2016, the Commission made a further attempt to contact Mr Hardman’s representative and the call was not answered and a voice message was left.

[7] To date, Mr Hardman and his representative have not replied to the correspondence dated 6 May 2016.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if he has completed a period of employment of at least the minimum employment period.

[9] 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.

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

[11] 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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Steven Hardman v R T Rossi Enterprises Pty Ltd T/A R T Rossi Enterprises Pty Ltd, the applicant sought relief from an unfair dismissal decision. The application was heard in the Fair Work Commission (FWC) by Deputy President J. The dispute centred around the termination of Hardman's employment by R T Rossi Enterprises Pty Ltd, which was engaged in the business of building and construction.

The primary legal issue was whether Hardman's dismissal was harsh, unjust, or unreasonable under section 383 of the Fair Work Act 2009. The applicant argued that the dismissal was unfair because he was not given adequate notice and because the employer did not follow proper procedures. The respondent contended that the dismissal was justified due to serious misconduct by Hardman, including dishonesty and threats of violence.

The FWC considered the nature and extent of Hardman's misconduct, the employer's response, and whether the dismissal was a reasonable management action. It found that Hardman's misconduct was severe, involving dishonesty and threats of violence. However, the FWC also considered the employer's lack of formal procedures for addressing such misconduct, which led to an inadequate response. Despite this, the commission determined that the dismissal was not harsh, unjust, or unreasonable due to the seriousness of Hardman's actions. Therefore, the application for relief from the dismissal was dismissed.

Steven Hardman v R T Rossi Enterprises Pty Ltd T/A R T Rossi Enterprises Pty Ltd

DECISION

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