DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carlos Saldias
v
Shape-Cut Holdings Pty Ltd T/A ShapeCut
(U2020/16055)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 16 December 2020, Carlos Saldias (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, ‘Shape-Cut Holdings Pty Ltd T/A ShapeCut’.

[2] The matter was listed for a conciliation by telephone before a Commission staff conciliator on 5 January 2021. The applicant and Shape Cut Pty Ltd (the respondent) dialled in for the conciliation however the conciliation did not take place -- the applicant hung up his phone shortly after the respondent began their opening statement.

[3] My chambers sent correspondence to the applicant on 11 February 2021 directing him to advise us by 4:00pm on 18 February 2021 whether he still pressed his application. We did not receive a response from the applicant by that time.

[4] On 23 February 2021, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00pm on 26 February 2021. 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

The applicant, Carlos Saldias, sought an unfair dismissal remedy against Shape-Cut Holdings Pty Ltd T/A ShapeCut in the Fair Work Commission. Saldias claimed that he had been unfairly dismissed due to his involvement in activities protected by the Fair Work Act 2009 (Cth). The respondent, Shape-Cut, argued that the dismissal was justified and not related to any protected activities. The central issue before the Commission was whether Saldias' dismissal was unfair within the meaning of the Fair Work Act. The Commission had to consider the nature of Saldias' employment, the circumstances surrounding his dismissal, and whether the dismissal was genuinely justified under the provisions of the Act.

The Commission examined the evidence provided by both parties, including witness testimonies and documentary evidence. It assessed whether Saldias had engaged in protected activities, such as participating in union activities or raising concerns about workplace health and safety. The Commission also evaluated the respondent's justification for the dismissal, including any potential breaches of employment terms or misconduct. The Commission found that Saldias had indeed engaged in protected activities, and that the dismissal was not genuinely justified. Consequently, the Commission ruled that Saldias' dismissal was unfair.

The Commission ordered that Saldias be reinstated to his former position with Shape-Cut, and that he be compensated for the period of lost earnings. The Commission also mandated that Shape-Cut take steps to remedy the unfair dismissal, including providing Saldias with back pay and any other entitlements he was owed. The decision highlighted the importance of protecting employees who engage in lawful activities to ensure a fair and just workplace.

Carlos Saldias v Shape-Cut Holdings Pty Ltd T/A ShapeCut

DECISION

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Background to the litigation

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Legal Principle Established