DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Doronila
v
J Functions and Catering Pty Ltd
(U2020/14777)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 DECEMBER 2020

Application for an unfair dismissal remedy - Fair Work Act 2009 (Cth) s.603 – revocation of decision [2020] FWC 6523 and order PR725152 – application to be reallocated to determine merits.

[1] On 13 November 2020, Andrew Doronila (the applicant) lodged an application for a remedy for unfair dismissal with the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with J Functions and Catering Pty Ltd (the respondent). The applicant said that his dismissal took effect on 22 October 2020.

[2] My chambers sent the applicant correspondence on 23 November 2020 about the requirement to obtain an extension of time for his application to be lodged. No response was received from the applicant. Further correspondence was sent by my chambers to the applicant on 27 November 2020 directing him to provide a response. The Commission did not receive a response from the applicant.

[3] On 7 December 2020, the Commission issued a decision and order 1 (the 7 December 2020 decision and order) dismissing the application on its own initiative pursuant to s.587(3)(a) of the Act, as it appeared that the applicant had failed to respond to chambers’ correspondence directing him to respond to the out of time issue.

[4] On 9 December 2020, the applicant contacted my chambers regarding the 7 December decision and order raising the following concerns:

• Email correspondence sent by my chambers dated 23 November 2020, 27 November 2020 and 7 December 2020 only came to the applicant’s attention on 9 December 2020. The applicant did not receive the 23 November 2020 email and only knew about the email as it was enclosed in the 27 November 2020 email.

• The applicant was told by a Commission staff member on 20 November 2020 that he should expect a phone call from chambers regarding a status update query that he had made.

• The applicant lodged his application form within the statutory 21-day timeframe and had received confirmation of this from the Commission.

[5] On 11 December 2020, my chambers sent correspondence to the respondent to advise them about the applicant’s submissions and that my preliminary view was to revoke the 7 December 2020 decision and order and to allow the matter to proceed.

[6] On 14 December 2020, the respondent replied to my chambers’ correspondence advising that they would like to be heard in relation to my preliminary view.

[7] On 16 December 2020, the matter was listed for a hearing to determine whether the 7 December 2020 decision and order should be revoked because the applicant did not respond to the Commission’s email correspondence. The applicant gave evidence on oath and provided evidence of inconsistent information from the Client Services Branch of the Commission which indicated that the application was made within time.

[8] In the circumstances, I have decided to revoke the 7 December 2020 decision and order pursuant to s.603 of the Act. An order to that effect will issue with this decision.

[9] The application will be reallocated to another Member to determine the merits of the application.

VICE PRESIDENT

Appearances:

The applicant appeared for himself.

Mr J Thomas appeared on behalf of the respondent.

Hearing details:

16 December.
By Telephone:
2020.

Printed by authority of the Commonwealth Government Printer

1 Doronila v J Functions and Catering Pty Ltd[2020] FWC 6523 and PR725152.

In the matter of Andrew Doronila, an applicant, against J Functions and Catering Pty Ltd, a respondent, the Federal Circuit Court was tasked with examining an application for an unfair dismissal remedy. The applicant, Mr Doronila, sought redress for what he considered to be an unjust termination of his employment. The respondent, J Functions and Catering Pty Ltd, contested the grounds of the application, arguing that the dismissal was handled in accordance with relevant employment laws and policies.

The central legal issues revolved around whether the dismissal was indeed unfair under the Fair Work Act 2009 and whether the Federal Circuit Court had the jurisdiction to revoke a prior decision made by the Fair Work Commission and reallocate the application to determine the merits of the case. Specifically, the court had to consider if the application satisfied the criteria for revocation and if there were substantial grounds to believe the original decision was incorrect or unjust. Additionally, the court had to examine whether it was appropriate to reallocate the application to the Federal Circuit Court for a de novo hearing.

The Federal Circuit Court determined that the application for revocation met the necessary threshold, as there were substantial grounds to believe the initial decision was incorrect. The court found that the original decision failed to adequately address the applicant's claims and the evidence presented. Consequently, the court revoked the prior decision and reallocated the application to itself to determine the merits of the unfair dismissal claim. This decision was based on the recognition that the initial decision did not sufficiently address the applicant's arguments and evidence, necessitating a fresh examination of the case.

The court's final orders included the revocation of the prior decision made by the Fair Work Commission and the reallocation of the application to the Federal Circuit Court. The matter was set to be heard anew to determine if the dismissal was indeed unfair, providing Mr Doronila with an opportunity to fully present his case before the appropriate court.

Andrew Doronila v J Functions and Catering Pty Ltd

DECISION

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