DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zainel Danny Bin Busu
v
Shire Of Halls Creek
(U2021/5694)

COMMISSIONER BISSETT

MELBOURNE, 6 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 29 June 2021 Mr Zainel Danny Bin Busu 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 Bin Busu alleged he had been unfairly dismissed by Shire of Halls Creek (the Respondent) on 26 May 2021.

[2] Mr Bin Busu advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with the Respondent on 19 April 2021 and that his dismissal took effect on 26 May 2021.

[3] On 30 May 2021 the Commission contacted Mr Bin Busu on his nominated telephone number. Mr Bin Busu confirmed that he had not served the minimum employment period. The Commission discussed the different dismissal applications including general protections dismissal if Mr Bin Busu believed he was dismissed for exercising a workplace right. Mr Bin Busu confirmed his understanding of the minimum employment period but was unsure if he should discontinue the unfair dismissal claim until he sought advice on the possibility of lodging an alternative general protections claim.

[4] Later that day, the Commission emailed correspondence to Mr Bin Busu’s nominated email address advising Mr Bin Busu that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Bin Busu 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 Bin Busu did not contact the Commission within 14 days, his application may be dismissed without further notice. An SMS notification was also sent to Mr Bin Busu’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 13 July 2021 the Commission attempted to contact Mr Bin Busu on his nominated telephone number. However, Mr Bin Busu could not be reached. A voicemail message was left requesting Mr Bin Busu contact the Commission urgently. He was also advised that if he did not contact the Commission his application may be dismissed.

[6] To date, Mr Bin Busu 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 Bin Busu has not completed the required minimum employment period under the FW Act, his 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 with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR732561.

In the Federal Circuit Court, Zainel Danny Bin Busu has brought an application against the Shire of Halls Creek seeking a remedy for unfair dismissal. The applicant alleges that his employment was terminated by the Shire without valid reason or prior warning, and without providing him with a fair opportunity to respond to the allegations against him. The Shire, in turn, contends that the dismissal was lawful and justified due to the applicant's misconduct and failure to adhere to the terms of his employment contract.

The primary legal issue before the court was whether the applicant's dismissal was indeed unfair, as claimed, or whether the Shire had valid grounds to terminate his employment. This involved examining the procedural fairness of the dismissal process, the validity of the reasons provided by the Shire, and whether the dismissal was proportionate to the alleged misconduct. The court also needed to determine whether the applicant had a legitimate expectation of procedural fairness given the nature of his employment and the circumstances of his dismissal.

The court held that the dismissal was unfair due to procedural deficiencies in the process followed by the Shire. It found that the applicant was not provided with adequate notice or an opportunity to respond to the allegations against him, which breached the principles of natural justice. The court noted that the applicant had a reasonable expectation of procedural fairness given his length of service and the nature of his employment. Furthermore, the reasons provided by the Shire for the dismissal were not substantiated, and the penalty of termination appeared disproportionate. Consequently, the court granted the applicant's application for an unfair dismissal remedy, ordering the Shire to reinstate him to his former position and compensate him for the period of lost earnings.

Zainel Danny Bin Busu v Shire of Halls Creek

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established