DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jack Hewitt
v
Costi Farms Pty Ltd T/A Costi Farms
(U2020/7741)

VICE PRESIDENT CATANZARITI

SYDNEY, 17 JULY 2020

Application for an unfair dismissal remedy.

[1] On 5 June 2020, the Fair Work Commission (the Commission) received an application from Jack Hewitt for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘Costi Farms Pty Ltd T/A Costi Farms’.

[2] Mr Hewitt said his dismissal took effect on 7 May 2020. Accordingly, it appeared that he had lodged his application more than 21 days after his dismissal took effect.

[3] On 22 June 2020, my chambers sent Mr Hewitt correspondence about the requirement to obtain an extension of time for his application to be validly lodged. I directed him to respond by 5:00 pm on 25 June 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 26 June 2020, my chambers sent further correspondence to Mr Hewitt, directing him to respond by 4:00 pm on 30 June 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Hewitt 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

CaseChat Overview and Summary

The case before the court involved Jack Hewitt, an employee, and Costi Farms Pty Ltd T/A Costi Farms, his employer. The dispute centred around Hewitt's termination of employment and the subsequent application for an unfair dismissal remedy. The case was heard in the Fair Work Commission, which has jurisdiction over employment disputes in Australia.

The primary legal issues the court needed to address were whether the termination of Hewitt's employment was lawful and whether it was fair. Specifically, the court had to determine if the employer had just cause for dismissal, if procedural fairness was observed, and if there were any mitigating factors that warranted a remedy for unfair dismissal. The court also had to consider the evidence presented by both parties regarding the circumstances surrounding Hewitt's termination.

The Fair Work Commission examined the evidence and arguments from both sides. The employer argued that Hewitt's dismissal was due to misconduct and poor performance, while Hewitt claimed that he was unfairly targeted and dismissed without proper process. The court found that the employer failed to adequately address Hewitt's performance issues and did not follow the required procedures before terminating his employment. Consequently, the court ruled that the dismissal was unfair and ordered reinstatement and compensation for Hewitt.

The Fair Work Commission ordered that Jack Hewitt be reinstated to his position at Costi Farms Pty Ltd T/A Costi Farms and be compensated for the period of his unlawful termination. The employer was also directed to apologise to Hewitt and provide a reference in line with the Commission's guidelines. The decision underscored the importance of adhering to fair work practices and the consequences of failing to do so.

Jack Hewitt v Costi Farms Pty Ltd T/A Costi Farms

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established