DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darron Brough
v
Future Pool Company
(U2021/3139)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 JULY 2021

Application for an unfair dismissal remedy.

[1] On 14 April 2021, Darron Brough made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in respect to his employment with “Future Pool Company”. The application was lodged 7 days outside the 21 day period prescribed by s.394(2) of the Act.

[2] My chambers sent correspondence to Mr Brough by email and mail on 8 June 2021 requiring him to provide a statement in support of the granting of an extension of time for the late lodgement of his application. He was asked to provide the information by no later than 5:00pm on 15 June 2021. No response was received from Mr Brough.

[3] On 6 July 2021, further correspondence was sent to Mr Brough by email and mail directing him to provide a response by 4:00pm on 13 July 2021. He was advised that in the absence of a reply his application may be dismissed.

[4] To date, Mr Brough has not responded to any of the Commission’s correspondence.

[5] 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

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[6] The words, “Without 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).

[7] In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by Darron Brough against Future Pool Company for an unfair dismissal remedy. Brough had been employed by Future Pool Company as a salesperson. The employment was terminated by the company citing poor performance and failure to meet sales targets as the grounds for dismissal. Brough contested the termination, claiming that the dismissal was unfair due to a lack of procedural fairness and inadequate reasons provided by the employer.

The primary legal issues the Commission had to address were whether the dismissal was procedurally fair and whether the reasons provided by Future Pool Company for the dismissal were justified. The Commission considered the adequacy of the performance feedback provided to Brough, the process followed in reaching the decision to terminate, and whether the dismissal was proportionate to the circumstances. The Commission also evaluated the employer's compliance with the relevant provisions of the Fair Work Act.

The Fair Work Commission determined that the dismissal was procedurally unfair due to insufficient feedback and communication regarding Brough's performance prior to termination. The Commission found that Future Pool Company failed to provide Brough with adequate warnings and opportunities to improve. The reasons provided by the employer for the dismissal were deemed insufficient to justify the termination. Consequently, the Commission ruled that the dismissal was unfair and ordered the company to reinstate Brough to his former position or, alternatively, to pay compensation in lieu of reinstatement.

Darron Brough v Future Pool Company

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established