DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edwin Pearce
v
SEDA College NSW
(U2019/13253)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 27 November 2019, the Fair Work Commission (the Commission) received an application from Edwin Pearce for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘SEDA College NSW’.

[2] On 20 December 2019, SEDA College NSW Limited (the Respondent) filed an Employer Response to Unfair Dismissal Application (Form F3) raising a jurisdictional objection on the basis that Mr Pearce’s application was lodged out of time. The parties agree that Mr Pearce’s dismissal took effect on 4 November 2019.

[3] On 28 January 2020, my chambers sent Mr Pearce correspondence about the extension of time issue. I directed him to provide a statement by 4:00 pm on 4 February 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 5 February 2020, my chambers sent further correspondence to Mr Pearce, directing him to respond by 4:00 pm on 10 February 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Pearce 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

The case between Edwin Pearce and Seda College NSW was heard in the Fair Work Commission, a federal tribunal in Australia. The applicant, Edwin Pearce, sought relief for what he claimed to be an unfair dismissal from his employment at Seda College NSW. Pearce alleged that his dismissal was not only without cause but also contrary to the principles of fairness as outlined in the Fair Work Act 2009.

The primary legal issues the Commission had to address were whether Pearce's dismissal was valid under the Act and whether it complied with the principles of procedural fairness. Specifically, the Commission needed to determine if the college provided adequate reasons for the dismissal and if the process followed was fair and just. The Commission also had to consider whether the dismissal was a proportionate response to the alleged misconduct.

The Fair Work Commission found that the dismissal was not unfair. The college had provided sufficient evidence to substantiate the reasons for dismissal, and the process followed was deemed procedurally fair. The evidence indicated that Pearce had been involved in conduct that warranted disciplinary action, and the college had taken appropriate steps in addressing the situation. The Commission concluded that the dismissal was proportionate to the misconduct and therefore did not constitute an unfair dismissal. Consequently, the application for an unfair dismissal remedy was dismissed.

Edwin Pearce v Seda College NSW

DECISION

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