DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Scott Palmer
v
LAC Hospitality Services T/A Cactus Jacks
(U2016/12618)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 17 October 2016, Mr Christopher Scott Palmer made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Mr Palmer in the Fair Work Commission (the Commission) was incomplete as he did not provide a response to questions 1.2 and 1.3 of his application, namely, the date of notification of dismissal and the date dismissal took effect.

[3] On 18 October 2016, the Commission attempted to contact Mr Palmer via telephone and a voicemail was left. On the same date, an email was sent to Mr Palmer advising the application was incomplete and further details were required. It was also noted that payment or a completed application for waiver was required and that in the absence of advice being received within 14 days, his application may be dismissed.

[4] On 1 November 2016, the Commission again attempted to contact Mr Palmer via telephone and a voicemail was left. On the same date, a follow up letter was sent to Mr Palmer advising that his application remained incomplete and that in the absence of advice from him within 14 days, his application may be dismissed.

[5] On 7 November 2016, a further attempt to telephone Mr Palmer was made and a voicemail was left.

[6] To date, Mr Palmer has not contacted the Commission or provided the necessary details as requested.

[7] Section 587(1) 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

(c) the application has no reasonable prospects of success.

[8] Having regard to the circumstances of this matter, I am satisfied the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for relief from an unfair dismissal brought by Christopher Scott Palmer against LAC Hospitality Services T/A Cactus Jacks. The applicant, Mr. Palmer, alleged that he was dismissed without just cause or reason, contrary to section 382 of the Fair Work Act 2009. LAC Hospitality Services, the respondent, contested the claim, asserting that Mr. Palmer's dismissal was justified on the grounds of misconduct and insubordination.

The primary legal issues for the Commission to determine were whether Mr. Palmer's dismissal was procedurally fair and whether it was substantively fair. Procedural fairness required an examination of the process followed by LAC Hospitality Services in dismissing Mr. Palmer, including whether he was given an opportunity to respond to the allegations against him and whether the decision-making process was impartial. Substantive fairness involved assessing whether the dismissal was reasonable in all the circumstances, particularly in relation to the allegations of misconduct and insubordination.

In considering the application, the Commission examined the evidence and submissions from both parties. It was determined that the process leading to Mr. Palmer's dismissal was procedurally fair, as he had been provided with an opportunity to respond to the allegations and the decision was made by someone who was not biased against him. However, the Commission found that the dismissal was not substantively fair. The evidence did not support the characterisation of Mr. Palmer's actions as gross misconduct or insubordination warranting dismissal. Instead, the Commission concluded that a lesser disciplinary action would have been appropriate.

The Fair Work Commission granted the application for relief from unfair dismissal. Mr. Palmer was reinstated to his position with LAC Hospitality Services and awarded compensation for the period of his unjustified dismissal.

Christopher Scott Palmer v LAC Hospitality Services T/A Cactus Jacks

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established