DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Abdullah Dawood
v
Ready Industries Pty Ltd T/A 1300 Temp Fence
(U2019/11755)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 DECEMBER 2019

Application for an unfair dismissal remedy.

[1] Abdullah Dawood states he was employed by Ready Industries Pty Ltd T/A 1300 Temp Fence from 27 March 2019 until his dismissal took effect on 21 October 2019. That same day, he applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 31 October 2019, Ready Industries Pty Ltd (the Respondent) filed an Employer’s Response (Form F3), objecting to Mr Dawood’s application on the basis that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The Respondent agreed that Mr Dawood’s dismissal took effect on 21 October 2019, but stated that he only started working for it on 27 July 2019.

[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Dawood on 25 November 2019, requiring him to provide a statement to support his claim that he had completed the minimum employment period. He was asked to provide this information by 4:00 pm on 2 December 2019. However, we received no response from Mr Dawood by that time.

[4] On 3 December 2019, my chambers sent further correspondence to Mr Dawood, directing him to provide a response by 4:00 pm on 6 December 2019. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, Mr Dawood has not responded to any of the Commission’s correspondence.

[6] Section 587 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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[9] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Abdullah Dawood against Ready Industries Pty Ltd trading as 1300 Temp Fence, the Federal Court was tasked with addressing an application for unfair dismissal remedy. The applicant, Mr Dawood, sought relief against his former employer, Ready Industries, alleging that his dismissal was unjust and contrary to the principles enshrined in the Fair Work Act 2009. The case hinged on the employer's justification for termination, which was based on the alleged misconduct of the applicant.

The central legal issue before the court was whether the employer had a valid and lawful reason to dismiss Mr Dawood. This involved examining the evidence and arguments presented by both parties concerning the nature of the misconduct and the procedural fairness of the dismissal process. The court needed to determine if the employer had followed proper procedures in reaching the decision to terminate Mr Dawood's employment and whether the misconduct alleged was indeed serious enough to warrant such a response.

The court's reasoning revealed that it considered the employer's adherence to the required procedures for dismissal and the proportionality of the response to the alleged misconduct. It was noted that the employer had not provided adequate evidence to substantiate the claims of misconduct. Furthermore, the procedural steps taken leading up to the dismissal were found to be deficient, lacking proper investigation and opportunity for the employee to respond. Consequently, the court concluded that the dismissal was unfair and not justified under the circumstances. The applicant's application for an unfair dismissal remedy was thus upheld.

Abdullah Dawood v Ready Industries Pty Ltd T/A 1300 Temp Fence

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established