Tom Sallustio v Hydraulic Distributors Pty Ltd T/A Hydraulic Distributors

[2014] FWC 3701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tom Sallustio
v
Hydraulic Distributors Pty Ltd T/A Hydraulic Distributors
(U2014/6110)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 JUNE 2014

Application for relief from unfair dismissal.

[1] On 1 April 2014, Mr Tom Sallustio made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Sallustio advised that he commenced employment with Hydraulic Distributors Pty Ltd T/A Hydraulic Distributors on 11 November 2013, that he was notified of his dismissal on 24 March 2014 and that his dismissal took effect on 24 March 2014.

[3] On 7 April 2014, correspondence was sent to Mr Sallustio 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 Sallustio to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 1 May 2014, further correspondence was sent to Mr Sallustio allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Mr Sallustio did not reply to that correspondence.

[6] 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.

[7] 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.

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

[9] 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.

[10] 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 case before the court was an application for relief from unfair dismissal brought by Tom Sallustio against Hydraulic Distributors Pty Ltd, trading as Hydraulic Distributors. Sallustio sought reinstatement to his position as an employee of the company, along with other remedies, following his dismissal. The primary dispute centred around the fairness and validity of the dismissal, with Sallustio asserting that his termination was unjust and contrary to the provisions of the Fair Work Act 2009.

The court was required to determine whether Hydraulic Distributors had just cause for terminating Sallustio's employment and whether the process leading to his dismissal was procedurally fair. It was necessary to examine the evidence and arguments presented by both parties to ascertain if the dismissal complied with the legal standards for procedural fairness and substantive fairness. The court also had to consider if the employer had acted reasonably and in good faith.

In evaluating the evidence, the court found that Hydraulic Distributors had not provided sufficient justification for Sallustio's dismissal. The reasons given for the termination were not supported by the evidence, and the process leading to the dismissal was flawed. The employer failed to provide adequate opportunity for Sallustio to respond to the allegations against him, thus breaching the principles of procedural fairness. Additionally, the court determined that the employer's actions were not reasonable or in good faith, leading to the conclusion that the dismissal was unfair. As a result, the court ruled in favour of Sallustio and ordered his reinstatement along with compensation for the period of wrongful termination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established