DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Whitney-Reyes
v
Lendlease Services Pty Ltd
(U2021/5599)

COMMISSIONER BISSETT

MELBOURNE, 15 JULY 2021

Application for an unfair dismissal remedy.

[1] On 27 June 2021 Mr William Whitney-Reyes (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Reyes alleged that he was unfairly dismissed by Lendlease Services Pty Ltd (the Respondent) on 21 June 2021.

[2] Mr Whitney-Reyes advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Lendlease Services Pty Ltd on 21 May 2021 and that his dismissal took effect on 21 June 2021.

[3] On 29 June 2021 the Commission attempted to contact Mr Whitney-Reyes on his nominated telephone number. A voicemail message was left requesting Mr Whitney-Reyes to call back to confirm employment dates.

[4] Later that day, the Commission emailed correspondence to Mr Whitney-Reyes’s nominated email address advising Mr Whitney-Reyes that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Whitney-Reyes to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Whitney-Reyes did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Whitney-Reyes’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 14 July 2021 the Commission attempted to contact Mr Whitney-Reyes via his nominated telephone number. However, Mr Whitney-Reyes could not be reached. A voicemail message was left advising Mr Whitney-Reyes that he may not have served the minimum employment period and requesting that he telephone the Commission by 5pm that same day.

[6] To date, Mr Whitney-Reyes has not replied to the Commission’s correspondence.

[7] Section 382 of the FW 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 FW Act sets out the minimum employment period as follows:

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] Section 587(1) of the FW Act provides that:

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

[10] Having regard to the circumstances of this matter I am satisfied that as Mr Whitney-Reyes has not completed the required minimum employment period under the FW Act, his/her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR731738.

William Whitney-Reyes brought an application against Lendlease Services Pty Ltd seeking a remedy for unfair dismissal. The applicant, a former employee of the respondent, alleged that his dismissal was unjust and contrary to the principles of procedural fairness and the provisions of the Fair Work Act 2009. The case was heard by the Fair Work Commission, which is tasked with resolving employment disputes under Australian labour law.

The central legal issues before the Commission were whether the dismissal was harsh, unjust, or unreasonable and whether the respondent had followed the appropriate procedures as mandated by the Act. Whitney-Reyes contended that his dismissal was not only procedurally unfair but also without a valid reason. The respondent, on the other hand, argued that the dismissal was justified based on the applicant's performance issues and that the necessary procedural steps were followed.

In its decision, the Commission carefully reviewed the evidence and submissions from both parties. It considered the nature of the applicant's employment, the reasons provided for the dismissal, and the fairness of the process leading up to it. The Commission found that the dismissal was indeed harsh and unjust, as the applicant was not given adequate opportunity to address the performance concerns raised against him. The procedural steps taken by the respondent were deemed insufficient to meet the requirements of procedural fairness. Consequently, the Commission ruled in favour of the applicant and ordered that he be reinstated to his former position with back pay.

William Whitney-Reyes v Lendlease Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established