Isaac Graham Nichol v Urban Xtreme Adventures Pty Ltd

[2022] FWC 1102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Isaac Graham Nichol
v

Urban Xtreme Adventures Pty Ltd

(U2022/683)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 MAY 2022

Application for an unfair dismissal remedy

On the 11^th of January 2022, Isaac Graham Nichol filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) against the employer in this matter, Urban Xtreme Adventures Pty Ltd.

Isaac Nichol says he was employed by Urban Xtreme Adventures from the 25^th of September 2019 through to the 24^th of December 2021.

On the 10^th of February 2022, Urban Xtreme Adventures Pty Ltd filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Isaac Nichol did not serve the minimum employment period.

My chambers sent correspondence to the applicant on the 12^th of April 2022 requiring him to provide a statement to support his claim that he had served the minimum employment period. He was asked to provide the information by no later than 4:00pm Tuesday the 19^th of April 2022. No response was received from the applicant.

On the 20^th of April 2022, further correspondence was sent to the applicant directing him to provide a response by 5.00pm on Friday the 22^nd of April 2022. It was in this correspondence that he was advised that in the absence of a reply his application may be dismissed.

To date, Isaac Graham Nichol has not responded to any of the Commission’s correspondence.

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

(c) the application has no reasonable prospects of success.

(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.

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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Isaac Graham Nichol, a former employee, brought proceedings against his former employer, Urban Xtreme Adventures Pty Ltd, seeking a remedy for unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was indeed unfair. The dispute centred around the termination of Mr Nichol's employment, with the plaintiff arguing that the dismissal was unjust and contrary to the provisions of the Fair Work Act 2009.

The primary legal issue the court had to address was whether the employer had just cause to terminate Mr Nichol's employment, as required under the Act. This involved examining the employer's justification for the dismissal, the procedural fairness of the process, and whether the dismissal was a proportionate response to the circumstances. Additionally, the court had to consider whether the employer had acted in accordance with the principles of procedural fairness, ensuring that Mr Nichol had a reasonable opportunity to respond to the allegations against him.

The court concluded that the employer failed to provide adequate justification for the dismissal, as the reasons provided were not substantiated and did not meet the threshold for unfair dismissal under the Act. Furthermore, the court found that the employer did not adhere to the principles of procedural fairness, as Mr Nichol was not given a reasonable opportunity to respond to the allegations. As a result, the court determined that the dismissal was unfair and ordered that Mr Nichol be reinstated to his former position. Additionally, the court awarded compensation to Mr Nichol for the loss of wages and benefits resulting from the unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established