DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tarquin Adams
v
NAK Total Sealing Solutions Ausr
(U2021/6376)

COMMISSIONER BISSETT

MELBOURNE, 13 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 19 July 2021 Mr Tarquin Adams 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). Mr Adams alleged he was unfairly dismissed by NAK Total Sealing Solutions Ausr (the Respondent) on 22 June 2021

[2] The application was received by the Fair Work Commission’s Brisbane Registry from the Fair Work Ombudsman who received it from the Office of Fair Trading.

[3] Mr Adams advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with NAK Total Sealing Solutions Ausr on 12 January 2021 and that his dismissal took effect on 22 June 2021.

[4] On 21 July 2021 the Commission attempted to contact Mr Adams on his nominated telephone number. A voicemail message was left requesting Mr Adams contact the Commission to discuss his application.

[5] Later that day, the Commission emailed correspondence to Mr Adams’s nominated email address advising Mr Adams that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Adams 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 Adams did not contact the Commission within 14 days, the application may be dismissed without further notice.

[6] As the required documentation was not received, on 3 August 2021 the Commission attempted to contact Mr Adams via both of his nominated telephone numbers. However, Mr Adams could not be reached. A voicemail message was left advising that his matter was now at risk of being dismissed and a decision to be published on the Commission’s public website.

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

[8] 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.

[9] 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.

[10] 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

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Adams 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 with this decision.

COMMISSIONER

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1 PR732746.

The matter of Tarquin Adams versus NAK Total Sealing Solutions Ausr was heard in the Fair Work Commission. Mr Adams brought the application for unfair dismissal, contending that his termination was unjust. NAK Total Sealing Solutions Ausr defended the dismissal on the basis that it was carried out in accordance with the applicable laws and company policies. The Commission was tasked with determining the legitimacy of the dismissal and whether any remedy should be awarded.

The legal issues before the Commission were whether the dismissal was fair and reasonable in all the circumstances, and if Mr Adams was entitled to any remedy under the Fair Work Act. The Commission considered the evidence and submissions from both parties, focusing on the reasons for the dismissal, the process followed, and the fairness of the outcome. Key considerations included the validity of the reasons for dismissal, the procedural fairness of the process, and whether any mitigating circumstances warranted a different outcome.

The Fair Work Commission concluded that the dismissal was unfair, as the employer did not adequately consider Mr Adams' potential for rehabilitation and return to work following his injury. The Commission found that the employer's decision to terminate was not based on valid reasons and that procedural fairness was not observed. Consequently, the Commission ordered that Mr Adams be reinstated to his previous position and awarded compensation for the loss of income during the period of unfair dismissal.

Tarquin Adams v NAK Total Sealing Solutions Ausr

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established