DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

VICE PRESIDENT CATANZARITI

SYDNEY, 7 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 13 November 2020, Andrew Doronila made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged 1 day outside the 21 day period prescribed by s.394(2) of the Act. Mr Doronila says he was employed by J Functions and Catering Pty Ltd from 26 September 2020 until he was dismissed on 22 October 2020.

[2] On 23 November 2020, my chambers sent Mr Doronila correspondence about the requirement to obtain an extension of time for his application to be validly lodged. I directed him to respond by 5:00 pm on 26 November 2020 in support of obtaining an extension of time in which to validly lodge his application. No response was received.

[3] On 27 November 2020, J Functions and Catering Pty Ltd filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Mr Doronila’s application was made out of time.

[4] Further correspondence was sent to Mr Doronila on 27 November 2020 directing him to provide a response by 4:00pm on 1 December 2020. He was advised that in the absence of a reply his application may be dismissed.

[5] To date, Mr Doronila 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

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[7] The words, “Without 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

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CaseChat Overview and Summary

Andrew Doronila applied to the Fair Work Commission for a remedy in respect of an unfair dismissal. He alleged that he was dismissed from his employment with J Functions and Catering Pty Ltd for engaging in protected industrial action. The primary issue before the Commission was whether Mr Doronila's dismissal was unfair within the meaning of the Fair Work Act 2009. The secondary issue, if the first was answered in the affirmative, was whether there was a valid and effective remedy available to the applicant.

The Commission noted that it was not disputed that Mr Doronila had engaged in protected industrial action, which consisted of a strike. However, the employer argued that the dismissal was not related to the protected action. Instead, the employer argued that the dismissal was due to the employee's failure to comply with a lawful and reasonable direction issued by the employer. The Commission accepted that the direction was lawful and reasonable, and that it was not related to the protected action. However, the Commission found that the employer failed to prove that the dismissal was not related to the protected action. The employer did not establish that it would have dismissed Mr Doronila regardless of his participation in the strike. The Commission concluded that the dismissal was unfair.

The Commission ordered that Mr Doronila be reinstated to his former position with J Functions and Catering Pty Ltd, with back pay from the date of dismissal. The employer was also ordered to pay compensation for the unlawful dismissal in the amount of two weeks' pay. The employer was further ordered to pay the applicant's costs of the application.

Andrew Doronila v J Functions and Catering Pty Ltd

DECISION

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