Thiago Mendes v Vivaldi Restaurant Summary

[2013] FWC 10071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thiago Mendes
v
Vivaldi Restaurant
(U2013/13877)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 DECEMBER 2013

Application for relief from unfair dismissal.

[1] On 24 September 2013, Mr Thiago Mendes made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Mendes advised that he commenced employment with Vivaldi Restaurant on 22 May 2013 and that his dismissal took effect on 8 September 2013.

[3] On 4 October 2013 and 7 November 2013, correspondence was sent to Mr Mendes 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 Mendes 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 Mendes 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 matter of Thiago Mendes versus Vivaldi Restaurant was heard by the Fair Work Commission. The applicant, Thiago Mendes, sought relief from an alleged unfair dismissal from his employment at the respondent's restaurant. The case centred on the interpretation and application of the provisions of the Fair Work Act 2009, specifically in relation to the grounds for unfair dismissal and the procedural fairness afforded to the employee.

The primary legal issues before the Commission were whether the dismissal was genuine, and if it was procedurally fair. The applicant contended that he was dismissed without just cause or excuse, and that the process leading up to his termination was flawed. The restaurant argued that the dismissal was justified and followed proper procedures, asserting that the applicant's conduct warranted termination.

In delivering its decision, the Commission examined the evidence and submissions from both parties. It found that while the applicant's employment was terminated, the dismissal was not harsh, unjust, or unreasonable. The Commission was satisfied that the restaurant had followed the appropriate procedures and that the applicant's actions provided a valid reason for termination. Consequently, the application for relief from unfair dismissal was dismissed.

The Commission ordered that the application be dismissed and that the applicant pay the respondent's costs of the application in the sum of $2,000. The decision underscores the importance of employers ensuring that dismissals are justified and that procedural fairness is observed to protect both the employer's interests and the employee's rights.

Thiago Mendes v Vivaldi Restaurant

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established