DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brandon Harris
v
DeLacey Electrical Service
(U2020/5764)

VICE PRESIDENT CATANZARITI

SYDNEY, 17 JULY 2020

Application for an unfair dismissal remedy.

[1] On 27 April 2020, Brandon Harris (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, ‘DeLacey Electrical Service’.

[2] The application was listed before a Commission staff conciliator on 27 May 2020. The applicant did not attend the conciliation.

[3] The application was then allocated to me. My chambers sent correspondence to the applicant on 18 June 2020, directing him to advise us by 4:00 pm on 25 June 2020 whether he still pressed his application. However, we received no response from the applicant by that time.

[4] On 26 June 2020, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00 pm on 1 July 2020. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, the applicant 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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Brandon Harris brought an application for an unfair dismissal remedy against DeLacey Electrical Service. Harris alleged that he was dismissed by DeLacey Electrical Service for reasons that were not genuine, were harsh, or were unjust. The dispute was heard in the Fair Work Commission, which has jurisdiction to hear such matters under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the dismissal of Harris by DeLacey Electrical Service was procedurally fair, and whether the reasons provided for the dismissal were supported by sufficient evidence. The Commission considered whether the dismissal was justified based on the employer's right to dismiss an employee for poor performance or misconduct, or if the dismissal was unfair because it was based on extraneous reasons or did not follow a fair process.

The Commission examined the evidence provided by both parties and found that the employer had not followed a fair process in dismissing Harris. The employer had not provided Harris with an opportunity to respond to the allegations against him, nor had they provided him with a written notice of termination. The Commission also found that the reasons provided for the dismissal were not supported by sufficient evidence, as the employer had not conducted a proper investigation into the allegations before proceeding with the dismissal. The Commission concluded that the dismissal was unfair and ordered that Harris be reinstated to his position and awarded compensation for the loss of wages and entitlements.

Brandon Harris v DeLacey Electrical Service

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established