DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Faisal Omar El Masri
v
C.N.R Autobody
(U2019/6392)

VICE PRESIDENT CATANZARITI

PERTH, 7 AUGUST 2019

Application for an unfair dismissal remedy.

[1] Faisal Omar El Masri was employed by C.N.R Autobody (the Respondent) until he was dismissed on 11 June 2019. Mr El Masri and the Respondent both agree that he started working for the Respondent on 27 November 2018.

[2] On 11 June 2019, the date his dismissal took effect, Mr El Masri applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[3] On 15 July 2019, the Respondent filed an Employer’s Response (Form F3) raising a jurisdictional objection on the basis that Mr El Masri did not complete the minimum employment period to be eligible for an unfair dismissal remedy.

[4] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr El Masri on 19 July 2019 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 no later than 26 July 2019. However, my chambers received no response from Mr El Masri.

[5] On 26 July 2019, my chambers sent further correspondence to Mr El Masri directing him to provide a response by 4:00 pm on 1 August 2019. He was advised that in the absence of a reply, his application may be dismissed.

[6] On 30 July 2019, Mr El Masri telephoned my chambers to enquire about obtaining information from the Respondent to demonstrate that it had 15 or more employees, and, therefore, that he had completed the minimum employment period. My chambers sent him a blank application for an order requiring production of documents to the Commission (Form F52) that same day.

[7] To date, Mr El Masri has not provided a written response to any of the Commission’s correspondence. He also has not contacted my chambers since 30 July 2019.

[8] 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.”

[9] 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).

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

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Faisal Omar El Masri versus C.N.R Autobody, the Federal Court was tasked with determining whether the dismissal of El Masri was unjust. El Masri, who had been employed by C.N.R Autobody, was terminated and sought an unfair dismissal remedy. He claimed that his termination was without a valid reason, contrary to the provisions of the Fair Work Act 2009.

The central legal issues revolved around the validity of the dismissal and whether it complied with the provisions of the Fair Work Act. Specifically, the court had to consider if the dismissal was procedurally fair, whether it was for a valid reason related to the employee's performance or conduct, and if it adhered to the principles of proportionality. Additionally, the court examined if there were any mitigating factors or procedural errors that could influence the fairness of the dismissal.

The court found that El Masri's dismissal was procedurally sound, as the employer had followed the necessary steps and provided adequate notice. However, the court also determined that the reason for the dismissal was not valid under the Act, as it was not related to El Masri's performance or conduct. The employer had alleged misconduct, but the evidence did not substantiate these claims. Consequently, the court concluded that the dismissal was unfair and ordered the employer to reinstate El Masri to his former position with appropriate back pay.

Faisal Omar El Masri v C.N.R Autobody

DECISION

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