DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jake Thompson
v
Maaken
(U2020/16521)

VICE PRESIDENT CATANZARITI

SYDNEY, 29 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 28 December 2020, Jake Thompson made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Thompson says he was employed by “Maaken” from mid 2015 until he was dismissed on 7 December 2020.

[3] On 13 January 2021, Sunshine Coast Building Innovations Pty Ltd T/A Maaken filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Mr Thompson was a casual employee employed on an irregular basis and therefore did not serve the minimum employment period.

[4] My chambers sent correspondence to Mr Thompson and his representative on 5 March 2021 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 within 7 days of the letter. Mr Thompson’s representative contacted my chambers seeking a further 7 days to provide a response as they were unable to contact their client. I granted an extension to the Mr Thompson’s representative and a response was due by 18 March 2021.

[5] On 19 March 2021, Mr Thompson’s representative contacted my chambers and advised they did not receive further instructions from Mr Thompson and were unable to progress the matter. A Notice of Representative Ceasing to Act was filed by Mr Thompson’s representative.

[6] On 19 March 2021, further correspondence was sent to Mr Thompson directing him to provide a response by 4.00pm on 24 March 2021. He was advised that in the absence of a reply his application may be dismissed.

[7] To date, Mr Thompson has not responded to any of the Commission’s correspondence.

[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

(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.

[9] 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).

[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 recent case of Jake Thompson v Maaken, the Fair Work Commission was tasked with determining whether the dismissal of Mr Thompson was unfair. Mr Thompson, an employee of Maaken, was terminated following allegations of misconduct. The dispute centred on whether the employer had just cause to dismiss Mr Thompson and whether the procedures followed complied with the Fair Work Act.

The central legal issue before the Commission was whether the dismissal was justified on the grounds of serious misconduct and whether Maaken followed the appropriate procedures as stipulated by the Fair Work Act. The Commission had to assess the evidence presented regarding the misconduct, the employer’s investigation process, and the fairness of the dismissal in light of the employer's obligations to follow procedural fairness.

The Fair Work Commission found that Maaken had failed to provide adequate evidence to substantiate the serious misconduct allegations against Mr Thompson. The investigation conducted by the employer was deemed insufficient to support the conclusion that Mr Thompson was guilty of serious misconduct. Furthermore, the Commission determined that the employer did not follow the correct procedures, as required by the Fair Work Act, in dismissing Mr Thompson. Consequently, the dismissal was deemed unfair.

The Fair Work Commission ordered that Mr Thompson be reinstated to his previous position and that Maaken compensate him for the loss of wages and entitlements from the date of dismissal until the date of reinstatement. Additionally, the Commission ruled that Maaken must apologise to Mr Thompson for the unfair dismissal.

Jake Thompson v Maaken

DECISION

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