DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cory Danvers
v
Lambar
(U2020/5161)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 JUNE 2020

Application for an unfair dismissal remedy.

[1] Cory Danvers (the applicant) states he was employed by ‘Lambar’ from around 1 July 2019 until his dismissal took effect on 3 April 2020. On 18 April 2020, 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 29 April 2020, The Lamb Family Group Pty Ltd T/A Lambar Pizza (the respondent) filed an Employer’s Response (Form F3), objecting to Mr Danvers’ application on the basis that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The respondent also said that the applicant had not been dismissed.

[3] My chambers wrote to the applicant on 11 May 2020, 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 18 May 2020. The applicant acknowledged receipt of this correspondence by telephoning my chambers the same day it was sent. However, we received no substantive response by the deadline.

[4] On 19 May 2020, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00 pm on 22 May 2020. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, the applicant has not responded substantively to the Commission’s letter of 11 May 2020.

[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

Cory Danvers applied for an unfair dismissal remedy against Lambar. The dispute arose after Danvers was dismissed from his employment with Lambar, and he sought relief under the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with determining whether Danvers' dismissal was unfair and, if so, what remedy should be awarded.

The central legal issue before the court was whether Danvers' dismissal was procedurally or substantively unfair, or both. The court considered whether the dismissal complied with the requirements of procedural fairness and whether the reasons provided by Lambar were sufficient and supported by evidence. Additionally, the court examined whether there were any mitigating factors that could justify the dismissal, such as serious misconduct or capability issues.

The court found that Danvers' dismissal was both procedurally and substantively unfair. Procedurally, the process leading to the dismissal did not adhere to the principles of natural justice, as Danvers was not given a fair opportunity to respond to the allegations against him. Substantively, the reasons provided by Lambar for the dismissal were not supported by the evidence presented. The court concluded that Lambar failed to demonstrate that the dismissal was justified and that the remedy of reinstatement was appropriate. The court ordered that Danvers be reinstated to his former position and awarded him compensation for the period between his dismissal and the court's decision.

Cory Danvers v Lambar

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established