jade.io BarNet Jade Shokry Milad; Medhat Botros v Melbourne Health T/A Royal Melbourne Hospital - [2020] FWC 1939 BarNet publication information - Date: Monday, 26.04.2021 - Publication number: 8203532 - User: anonymous
View this document in a browser Attribution Original court site https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc1939. URL: htm Content retrieved: April 22, 2020 Download/print date: April 26, 2021 [2020] FWC 1939 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394-Unfair dismissal Shokry Milad; Medhat Botros v Melbourne Health T/A Royal Melbourne Hospital (U2019/10312; U2019/10638) COMMISSIONER WILSON MELBOURNE, 21 APRIL 2020 Application for an unfair dismissal remedy [1]The employment of each of Shokry Milad and Medhat Botros (referred to in this decision as the Applicants) was terminated by Melbourne Health trading as Royal Melbourne Hospital (Melbourne Health) following consideration by their employer of the same set of circumstances. Mr Milad commenced employment in January 2003 and was dismissed with effect from 27 August 2019. Mr Botros commenced employment with Melbourne Health in April 2001 and was dismissed with effect from 5 September 2019. [2] Each of the Applicants was employed by Melbourne Health, which employs approximately 9,000 employees, as an environmental services employee responsible for cleaning the hospital's operating suites. Mr Milad's unfair dismissal application under the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (the Commission) on 15 September 2019 and Mr Botros' on 22 September 2019. [3] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in subsection 394(2); whether the person was protected from unfair dismissal; whether the BarNet publication information - Date: Monday, 26.04.2021 - Publication number: 8203532 - User: anonymous -------- -
dismissal was consistent with the Small Business Fair Dismissal Code; and whether the dismissal was a case of genuine redundancy. Neither party put forward that any of the other initial matters required such consideration. In relation to the elements within s.396, I find that the applications of each of Mr Milad and Mr Botros were lodged with the Commission within the 21 day period for making such applications; that at the relevant time each Applicant was dismissed they were a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise. [4] Evidence was given in these proceedings by each Applicant and, on behalf of Melbourne Health, by Mr Dobre Milenkovski, the Melbourne Health Support Services Manager and Mr Troy Cox, its Human Resources Manager. Ms Susan Garbutt, Melbourne Health's Perioperative Services Manager attended and gave evidence pursuant to an Order for attendance issued by the Commission, upon request of the Applicants. [5] The Applicants were represented by Mr Guindy Ghobrial, Solicitor, and Melbourne Health by Mr Jack Tracey, of Counsel, instructed by Mr David Hartnett of K & L Gates. Permission for both parties to be represented in these proceedings by a lawyer was granted by