DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Whitehead
v
Hacksaw Corporation Pty Ltd T/A Sunliner RV’s
(U2016/2104)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 29 JUNE 2016

Application for relief from unfair dismissal.

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

[2] Mr Whitehead advised that he commenced employment with Hacksaw Corporation Pty Ltd T/A Sunliner RV’s on 20 January 2016 and that his dismissal took effect on 20 May 2016.

[3] On 9 May 2016, the Fair Work Commission telephoned Mr Whitehead to confirm his employment dates and he advised he wished to continue with his application.

[4] On 9 May 2016, correspondence was sent to Mr Whitehead 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 Whitehead to advise the Commission within 14 days whether he wished to proceed with his application.

[5] On 26 May 2016, the Commission contacted Mr Whitehead who advised he could not provide evidence that he had worked for six months.

[6] To date, Mr Whitehead has not provided any further reply to the Commission’s 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 Whitehead 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

(c) the application has no reasonable prospects of success.”

[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

William Whitehead commenced proceedings in the Fair Work Commission against Hacksaw Corporation Pty Ltd T/A Sunliner RV's, seeking relief from unfair dismissal. The crux of the matter involved the termination of Mr. Whitehead's employment, which he contested as unjust and without sufficient cause or procedure. The Commission was tasked with examining the employer's justification for the dismissal and whether the termination complied with the requirements of the Fair Work Act 2009.

The legal issues before the Commission included whether the employer had a valid reason for the dismissal and whether the process followed was procedurally fair. Additionally, the Commission had to consider if the dismissal was consistent with the principles of fairness and proportionality. Mr. Whitehead argued that the dismissal was arbitrary and without proper justification, while the employer maintained that the termination was necessary due to misconduct and a breakdown in the employer-employee relationship.

The Commission meticulously reviewed the evidence and submissions from both parties. It found that while the employer had grounds to terminate Mr. Whitehead, the process was not adequately documented or followed. Furthermore, the employer failed to provide Mr. Whitehead with an opportunity to respond to the allegations against him. Consequently, the Commission concluded that the dismissal was unfair. It determined that the employer's failure to adhere to procedural fairness and the principles of proportionality rendered the dismissal unjustifiable.

The Fair Work Commission ordered that the dismissal of Mr. William Whitehead be deemed unfair and set aside the termination of his employment. It also mandated that Hacksaw Corporation Pty Ltd compensate Mr. Whitehead for the loss of remuneration from the date of dismissal until the reinstatement or until the matter is resolved by further proceedings. The employer was further directed to provide a written apology to Mr. Whitehead for the manner in which the dismissal was handled.

William Whitehead v Hacksaw Corporation Pty Ltd T/A Sunliner RV's

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established