DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Foster
v
Blenners Transport
(U2019/14548)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 23 December 2019, Daniel Foster applied for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). He named his former employer as Blenners Transport (Blenners).

[2] On 17 January 2020, Blenners filed an Employer’s Response (Form F3) to Mr Foster’s application. Blenners objected to the application on the basis that Mr Foster was not its employee.

[3] On 12 May 2020, my chambers sent correspondence to Mr Foster asking whether he still pressed his application against Blenners, or if he wished to request to amend his application to name another entity as the respondent. He was directed to respond by 4:00 pm on 19 May 2020. However, no response was received.

[4] On 20 May 2020, my chambers sent further correspondence to Mr Foster, directing him to respond by 4:00 pm on 25 May 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Foster 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

CaseChat Overview and Summary

In the case of Daniel Foster v Blenners Transport, the applicant, Mr Foster, sought an unfair dismissal remedy against his former employer, Blenners Transport. Mr Foster had been employed as a truck driver and claimed that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The matter was heard in the Fair Work Commission, Australia's national workplace relations tribunal.

The central legal issue that the Commission had to address was whether Mr Foster's dismissal was harsh, unjust, or unreasonable. The Commission considered whether the employer had followed the correct procedures in terminating Mr Foster's employment and whether the employer's actions were proportionate to the alleged misconduct. The Commission also had to determine whether there was a valid reason for dismissal, specifically focusing on whether the employer had a valid, lawful, and operational reason to terminate Mr Foster's employment.

The Fair Work Commission found that Blenners Transport had not followed the appropriate procedures when dismissing Mr Foster. The employer had failed to provide adequate notice and an opportunity for Mr Foster to respond to the allegations against him. The Commission also found that the employer's reasons for dismissal were not valid, as there was no evidence to support the allegations of misconduct. Consequently, the Commission determined that Mr Foster's dismissal was harsh, unjust, and unreasonable. The Commission ordered that Mr Foster be reinstated to his former position and awarded him compensation for lost wages and entitlements.

Daniel Foster v Blenners Transport

DECISION

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