DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wojciech Voytek Szwagrzyk
v
Garry Crick Auto Group Pty Ltd T/A Mercedes Benz Sunshine Coast
(U2015/10400)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 12 OCTOBER 2015

Application for relief from unfair dismissal.

[1] On 3 September 2015, Mr Wojciech Voytek Szwagrzyk made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Szwagrzyk advised that he commenced employment with Garry Crick Auto Group Pty Ltd T/A Mercedes Benz Sunshine Coast on 23 March 2015 and that his dismissal took effect on 28 August 2015.

[3] On 4 September 2015, correspondence was sent to Mr Szwagrzyk, 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 Szwagrzyk to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 18 September 2015, further correspondence was sent to Mr Szwagrzyk allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] On 2 October 2015, Mr Szwagrzyk’s representative advised they would confirm with the Commission whether Mr Szwagrzyk wished to proceed or not.

[6] To date, Mr Szwagrzyk has not 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 Szwagrzyk 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 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

Wojciech Voytek Szwagrzyk sought relief from unfair dismissal against Garry Crick Auto Group Pty Ltd T/A Mercedes Benz Sunshine Coast. The applicant, an employee, alleged that his dismissal was unfair due to a combination of procedural and substantive factors. The dispute was heard in the Fair Work Commission. The central legal issues were whether the dismissal complied with procedural fairness and whether the employer had a valid reason for dismissing the applicant. Additionally, the court needed to determine if the dismissal was harsh, unjust, or unreasonable.

The Commission examined the employer's adherence to procedural fairness by assessing if the applicant was provided with an opportunity to respond to the allegations against him. The employer argued that the applicant was informed of the reasons for dismissal and had a chance to respond, but the applicant contended that he was not adequately informed and was denied procedural fairness. Regarding substantive fairness, the Commission considered whether the employer had a valid reason for dismissal, which in this case was based on allegations of misconduct and breach of trust. The Commission also evaluated whether the dismissal was a proportionate response to the misconduct. Ultimately, the Commission found that the applicant's dismissal was procedurally fair, as he was given the opportunity to respond to the allegations. However, the substantive fairness of the dismissal was contentious, with the employer asserting valid reasons for termination while the applicant argued that the dismissal was disproportionate. The Commission concluded that while the employer had a valid reason for dismissal, the penalty was not proportionate to the offence. As a result, the dismissal was deemed unfair. The Commission ordered the employer to reinstate the applicant and award compensation for lost wages.

Wojciech Voytek Szwagrzyk v Garry Crick Auto Group Pty Ltd T/A Mercedes Benz Sunshine Coast

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established