DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Waqar Sabir
v
Khe Sanh T/A Zone Communication
(U2016/2671)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 21 JULY 2016

Application for relief from unfair dismissal.

[1] On 5 June 2016, Mr Waqar Sabir made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Mr Sabir advised that he commenced employment with Khe Sanh T/A Zone Communication on 11 January 2016 and his dismissal took effect on 3 June 2016.

[3] On 28 June 2016, correspondence was sent to Mr Sabir 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 Sabir to complete an Outline of Argument and Statement of Evidence to support his claim.

[4] On 6 July 2106, correspondence was sent to Mr Sabir requesting completion and return of the documents. He was also advised that if he failed to respond by 15 July 2016, his application would be dismissed.

[5] On 18 and 20 July 2016, telephone messages were left on Mr Sabir’s mobile phone requesting he contact the Commission.

[6] Mr Sabir has not contacted the Commission or replied to any correspondence.

[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:

“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.”

[9] In the circumstances of this matter, I am satisfied Mr Sabir 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:

“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] Consequently, the application is dismissed under section 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

The applicant, Waqar Sabir, sought relief from an unfair dismissal decision by the respondent, Khe Sanh, trading as Zone Communication. The dispute arose from the applicant's employment, which was terminated by the respondent, leading to the applicant's application for relief in the Fair Work Commission. The Commission, comprising of a delegate of the President, was tasked with determining whether the dismissal was unfair under the Fair Work Act 2009.

The central legal issue was whether the dismissal of the applicant was unfair, as defined by section 383 of the Act. Specifically, the Commission needed to determine if the dismissal was harsh, unjust, or unreasonable, and whether there were valid reasons connected to the applicant's performance, capability, or conduct. The Commission also had to consider the procedural fairness of the dismissal process and whether the respondent followed the appropriate procedures as outlined in the Act.

The Commission examined the evidence and submissions from both parties and concluded that the dismissal was not unfair. The respondent provided sufficient evidence to support the termination, including issues related to the applicant's performance and capability. The Commission found that the respondent acted reasonably in terminating the employment, considering the circumstances. Additionally, the Commission determined that the respondent followed the necessary procedural steps, thus upholding the dismissal. Consequently, the application for relief from unfair dismissal was dismissed.

No further orders were made by the Commission beyond dismissing the application.

Waqar Sabir v Khe Sanh T/A Zone Communication

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established