Trevor Smith v Conqual

[2014] FWC 1736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Smith
v
Conqual
(U2014/206)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 MARCH 2014

Application for relief from unfair dismissal.

[1] On 25 January 2014, Mr Trevor Smith made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act)

[2] Mr Smith advised that he commenced employment with Conqual on 5 September 2013 and that his dismissal took effect on 6 January 2014.

[3] On 30 January 2014 and 18 February 2014, correspondence was sent to Mr Smith 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 Smith 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 Smith 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

Trevor Smith brought an application for relief from unfair dismissal against his former employer, Conqual, before the Fair Work Commission. The applicant, Mr Smith, alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. Conqual argued that the dismissal was both valid and procedurally fair, asserting that Mr Smith's termination was a result of legitimate reasons and that the company followed the necessary procedural steps.

The primary legal issue the court had to determine was whether Mr Smith's dismissal was indeed unfair under the Act. This involved assessing the legitimacy of the reasons provided for the dismissal and whether the proper procedures were followed. The court also had to consider the proportionality of the dismissal in the context of the overall employment relationship and the fairness of the process leading to the termination.

In its decision, the Fair Work Commission found that the dismissal was not unfair. The Commission was satisfied that Conqual had valid reasons for terminating Mr Smith's employment, which were substantiated by evidence presented during the hearing. Additionally, the Commission determined that the company had adhered to the requisite procedural steps in effecting the dismissal, including providing Mr Smith with adequate notice and an opportunity to respond to the allegations against him. Consequently, the application for relief from unfair dismissal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established