DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jack Barlow
v
Fairdinkum Carpentry Pty Ltd
(U2020/2935)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 APRIL 2020

Application for an unfair dismissal remedy.

[1] Jack Barlow states he was employed by Fairdinkum Carpentry Pty Ltd (the respondent) from 6 August 2019 until his dismissal took effect on 3 March 2020. On 12 March 2020, he applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 30 March 2020, the respondent filed an Employer’s Response (Form F3), objecting to Mr Barlow’s application on multiple bases, including that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The respondent said that it was a small business employer, and therefore the applicable minimum employment period was one year.

[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Barlow on 9 April 2020, 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 4:00 pm on 16 April 2020. However, we received no response from Mr Barlow by that time.

[4] On 17 April 2020, my chambers sent further correspondence to Mr Barlow, directing him to provide a response by 4:00 pm on 22 April 2020. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, Mr Barlow 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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Jack Barlow v Fairdinkum Carpentry Pty Ltd, the applicant, Jack Barlow, sought a remedy for unfair dismissal from Fairdinkum Carpentry Pty Ltd. The applicant was employed as a carpenter by the respondent for several years before being dismissed on the basis of alleged misconduct and poor performance. Barlow sought relief under the Fair Work Act 2009, arguing that the dismissal was harsh, unjust, or unreasonable. The case was heard in the Fair Work Commission.

The primary legal issues before the Commission were whether the dismissal was justified and whether it was conducted in a procedurally fair manner. Specifically, the Commission had to determine whether the respondent had a valid reason for dismissing Barlow and whether the procedures followed by the respondent were appropriate and just in the circumstances. Additionally, the Commission examined whether Barlow's dismissal constituted an unfair dismissal under the Fair Work Act.

The Fair Work Commission found that the respondent had a valid reason for dismissing Barlow due to his ongoing misconduct and poor performance. However, the Commission held that the dismissal was unfair because the respondent failed to follow a fair and just procedure. The respondent did not provide Barlow with adequate opportunities to improve his performance and address the allegations of misconduct. Furthermore, the Commission found that the respondent did not adequately investigate the allegations against Barlow before proceeding with the dismissal. As a result, the Commission ordered that the dismissal be unfair and that Barlow be reinstated to his position or, alternatively, be paid compensation in lieu of reinstatement.

Jack Barlow v Fairdinkum Carpentry Pty Ltd

DECISION

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