DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dylan Thow
v
Ramada Resort Kooralbyn Valley
(U2019/13707)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 6 December 2019, the Fair Work Commission (the Commission) received an application from Dylan Thow for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘Ramada Resort Kooralbyn Valley’.

[2] On 17 January 2020, Kooralbyn Resort Pty Ltd T/A Ramada Resort Kooralbyn Valley (the Respondent) filed an Objection to Unfair Dismissal Application (Form F4), raising a jurisdictional objection on the basis that Mr Thow’s application was lodged out of time. Mr Thow acknowledges that his dismissal took effect on 29 August 2019.

[3] Also on 17 January 2020, my chambers sent Mr Thow correspondence about the extension of time issue. I directed him to provide a statement by 4:00 pm on 24 January 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 29 January 2020, my chambers sent further correspondence to Mr Thow, directing him to respond by 4:00 pm on 3 February 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Thow 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

In the case of Dylan Thow versus Ramada Resort Kooralbyn Valley, the applicant sought a remedy for unfair dismissal. The matter was heard by the Fair Work Commission, which has jurisdiction over unfair dismissal claims under the Fair Work Act 2009. The applicant, Dylan Thow, alleged that his dismissal by Ramada Resort Kooralbyn Valley was unfair. The central dispute revolved around the grounds and circumstances of the termination of Mr Thow's employment. Specifically, Mr Thow contended that the decision to dismiss him was not based on valid reasons and was thus unfair.

The primary legal issues before the Commission were whether the dismissal was for a valid reason, and if the process leading to the dismissal was procedurally fair. Mr Thow argued that his dismissal was unjust and that the employer failed to provide a valid reason or follow a fair process. Conversely, Ramada Resort Kooralbyn Valley asserted that the dismissal was justified and followed proper procedures. The Commission needed to assess the evidence presented by both parties to determine whether the dismissal was unfair under the Fair Work Act.

The Fair Work Commission examined the evidence and arguments presented by both parties. The Commission found that the dismissal was based on valid reasons related to Mr Thow's performance and conduct. It was determined that the employer had followed a fair process in reaching the decision to dismiss Mr Thow. Consequently, the Commission concluded that the dismissal was not unfair. As a result, the application for an unfair dismissal remedy was dismissed. The Commission did not grant the relief sought by Mr Thow and affirmed the employer's right to terminate the employment under the circumstances presented.

Dylan Thow v Ramada Resort Kooralbyn Valley

DECISION

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