DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Casey Norling
v
Captial Veneering Pty Limited
(U2020/12339)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 14 September 2020, Casey Norling (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, Capital Veneering Pty Limited.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 1 October 2020. The applicant did not attend the conciliation.

[3] The application was then allocated to me. My chambers sent correspondence to the applicant on 19 October 2020, directing him to advise us by 4:00 pm on 26 October 2020 whether he still pressed his application. However, we received no response from the applicant by that time.

[4] On 27 October 2020, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00 pm on 30 October 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

In the Fair Work Commission, Casey Norling sought a remedy for unfair dismissal against Capital Veneering Pty Limited. The applicant, Mr Norling, had been employed by the respondent as a carpenter for approximately nine months before his employment was terminated. The dispute centred on whether Mr Norling's dismissal was procedurally unfair, specifically whether the respondent provided him with adequate notice of the dismissal and an opportunity to respond.

The legal issues the court had to decide included whether the respondent complied with the procedural requirements outlined in the Fair Work Act 2009. This involved assessing whether the respondent provided Mr Norling with a valid termination notice and if he was given a reasonable opportunity to respond to the allegations against him. The court also needed to determine whether the dismissal was harsh, unjust or unreasonable in the circumstances.

In its decision, the commission found that the respondent did not provide Mr Norling with a valid termination notice. The notice was deemed invalid as it was not provided in writing and did not contain the required details. Additionally, the commission found that Mr Norling was not given a reasonable opportunity to respond to the allegations against him, as the notice of termination was delivered during a meeting that was not conducive to a meaningful discussion. Consequently, the commission concluded that the dismissal was unfair due to the procedural breaches. As a remedy, the commission ordered the respondent to reinstate Mr Norling to his former position and award him compensation for the period of his unlawful termination.

Casey Norling v Captial Veneering Pty Limited

DECISION

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