Waleed-William Shamoon v Melbourne U Turn T/A Melbourne U Turn

[2014] FWC 2926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Waleed-William Shamoon
v
Melbourne U Turn T/A Melbourne U Turn
(U2014/5669)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 MAY 2014

Application for relief from unfair dismissal - minimum employment period not met.

[1] On 17 March 2014, Mr Waleed-William Shamoon made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Shamoon advised that he commenced employment with Melbourne U Turn T/A Melbourne U Turn on 28 October 2013 and that his dismissal took effect on 28 February 2014.

[3] On 19 March 2014, correspondence was sent to Mr Shamoon 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 Shamoon to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 7 April 2014, Mr Shamoon advised that he wished to continue with his application.

[5] On 17 April 2014, directions were issued for Mr Shamoon to file material in support of his claim that he is protected from unfair dismissal. Mr Shamoon was required to provide this material by close of business, 30 April 2014.

[6] Mr Shamoon did not reply to that correspondence and did not file any material in response to those directions.

[7] 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.

[8] Section 383 of the Act sets out the minimum employment period as follows:

(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.

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

[10] Section 587(1) of the Act provides:

(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] 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

CaseChat Overview and Summary

In the Fair Work Commission, Waleed-William Shamoon brought an application against Melbourne U Turn T/A Melbourne U Turn for relief from unfair dismissal. The applicant, Mr Shamoon, had been employed by Melbourne U Turn for approximately two months before his employment was terminated. The primary dispute was whether Mr Shamoon was entitled to relief from unfair dismissal despite not meeting the minimum employment period requirement of six months.

The legal issues before the Commission centred on whether Mr Shamoon's termination was unfair and whether the minimum employment period requirement could be waived due to exceptional circumstances. Melbourne U Turn argued that the termination was not unfair and that the minimum employment period requirement should not be waived. The Commission needed to assess the nature of Mr Shamoon's dismissal and determine if there were exceptional circumstances that warranted a waiver of the minimum employment period.

The Commission found that Mr Shamoon's termination was not unfair because it was due to a genuine redundancy and not related to his employment. It was also determined that there were no exceptional circumstances to waive the minimum employment period requirement. Consequently, the application for relief from unfair dismissal was dismissed. The Commission emphasised that the termination was based on a genuine operational reason and not discriminatory or retaliatory conduct. The Commission concluded that the applicant did not meet the eligibility criteria for relief from unfair dismissal.

The Fair Work Commission dismissed Mr Shamoon's application for relief from unfair dismissal. The decision highlighted that the termination was a genuine redundancy and not influenced by any discriminatory or retaliatory motives. The Commission confirmed that there were no exceptional circumstances to waive the minimum employment period requirement, which is a necessary condition for relief from unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established