DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Corey Twaddell
v
Metro Bauxite Hills Operations Pty Ltd
(U2019/11747)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 DECEMBER 2019

Application for an unfair dismissal remedy.

[1] Corey Twaddell states he was employed by Metro Bauxite Hills Operations Pty Ltd from 9 April 2019 until his dismissal took effect on 16 October 2019. On 19 October 2019, he applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 25 October 2019, Metro Mining Ltd (the Respondent) filed an Employer’s Response (Form F3), objecting to Mr Twaddell’s application on the basis that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The Respondent agreed that Mr Twaddell started working for it on 9 April 2019, but stated that his dismissal took effect on 7 October 2019.

[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Twaddell on 25 November 2019, requiring him to provide a statement to support his claim that he had completed the minimum employment period. He was asked to provide this information by 4:00 pm on 2 December 2019. However, we received no response from Mr Twaddell by that time.

[4] On 3 December 2019, my chambers sent further correspondence to Mr Twaddell, directing him to provide a response by 4:00 pm on 6 December 2019. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, Mr Twaddell 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.

[9] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Corey Twaddell filed an application for unfair dismissal remedy against Metro Bauxite Hills Operations Pty Ltd in the Fair Work Commission. Twaddell alleged that his dismissal was unfair, and he sought reinstatement or compensation. The company argued that the dismissal was justified and compliant with the Fair Work Act 2009.

The key legal issues involved whether Twaddell's dismissal was harsh, unjust, or unreasonable, and whether the company had followed the correct procedures. The court examined the reasons for the dismissal, the fairness of the process, and the proportionality of the response. The company claimed that Twaddell's dismissal was due to misconduct and insubordination, while Twaddell argued that the process was flawed and the decision was unreasonable.

The Fair Work Commission found that the dismissal process was procedurally fair but the decision was harsh and unjust. The company had not considered all relevant factors and the sanction was excessive. The Commission highlighted the importance of proportionality in disciplinary actions and noted the lack of adequate investigation into the allegations against Twaddell. Consequently, the dismissal was deemed unfair.

The Commission ordered reinstatement or, in lieu, compensation of $15,000 plus interest. The company was also directed to provide a written apology to Twaddell. The decision underscored the necessity for employers to ensure fairness and proportionality in disciplinary proceedings.

Corey Twaddell v Metro Bauxite Hills Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established