DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jared Crombie
v
Crew NSW Pty Ltd
(U2019/2682)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 8 March 2019, Mr Jared Crombie made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Crombie’s application stated that he was employed by Crew NSW Pty Ltd (Crew NSW) from 20 July 2018 until he was dismissed on 18 February 2019.

[3] On 3 April 2019, Crew NSW filed an Employers Response (Form F3) raising a jurisdictional objection on the basis that Mr Crombie was not dismissed -- Mr Crombie was a casual employee and due to a decrease in workload Mr Crombie was advised that Crew NSW did not have any work to provide him.

[4] On 12 April 2019, Crew NSW filed an Objection to Unfair Dismissal Application (Form F4) raising jurisdictional objections that Mr Crombie was not dismissed and Mr Crombie did not serve the minimum employment period. Crew NSW submitted that Mr Crombie’s employment with Crew NSW commenced on 17 September 2018 and was notified by Crew NSW on 18 February 2019 that there was no work for him.

[5] The matter was referred to me to determine the minimum employment period jurisdictional objection. Correspondence was sent to Mr Crombie on 21 May 2019 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 seven days. No response was received from Mr Crombie.

[6] On 30 May 2019, further correspondence was sent to Mr Crombie directing him to provide a response by 4.00pm on 3 June 2019. He was advised that in the absence of a reply his application would be dismissed.

[7] To date, Mr Crombie 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

Jared Crombie, an employee, lodged an application against his employer, Crew NSW Pty Ltd, in the Fair Work Commission, seeking relief on the grounds of unfair dismissal. Crombie argued that his termination was unjust and contrary to the principles of the Fair Work Act 2009. Crew NSW Pty Ltd contended that the dismissal was warranted due to serious misconduct on the part of Crombie, thus falling within the provisions allowing for termination without undue process.

The primary legal issues revolved around whether the employer had just cause to terminate Crombie's employment and if the termination process adhered to the requisite standards under the Fair Work Act. Specifically, the court had to determine if the employer followed a procedurally fair process and if the dismissal was proportionate to the alleged misconduct. Furthermore, the court needed to assess whether the employer had considered all mitigating factors and provided Crombie with an opportunity to respond to the allegations.

The Fair Work Commission examined the evidence and arguments from both parties, focusing on the employer's procedural fairness and the proportionality of the dismissal. The Commission found that Crew NSW Pty Ltd did not provide Crombie with adequate opportunity to respond to the allegations of misconduct, and the process lacked procedural fairness. Additionally, the Commission determined that the dismissal was not proportionate to the misconduct, as the employer had not adequately considered Crombie's response or any mitigating circumstances. Consequently, the Commission ruled in favour of Crombie, finding the dismissal to be unfair.

The Fair Work Commission ordered that Crew NSW Pty Ltd reinstate Crombie to his previous position and compensate him for the loss of wages and entitlements from the date of termination to the date of reinstatement. Furthermore, the employer was directed to pay Crombie's legal costs associated with the application.

Jared Crombie v Crew NSW Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established