DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Rickard
v
Darwin Automotive Pty Ltd
(U2020/3180)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 18 March 2020, the Fair Work Commission (the Commission) received an application from Joseph Rickard for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with Darwin Automotive Pty Ltd.

[2] Mr Rickard said his dismissal took effect on 18 February 2020. Accordingly, it appeared that he had lodged his application more than 21 days after his dismissal took effect.

[3] On 28 April 2020, my chambers sent Mr Rickard correspondence through his solicitor about the requirement to obtain an extension of time in order for his application to be validly lodged. I directed him to provide a statement by 5:00 pm on 5 May 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 6 May 2020, my chambers sent further correspondence to Mr Rickard through his solicitor, directing him to respond by 4:00 pm on 11 May 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Rickard 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

Joseph Rickard commenced proceedings against Darwin Automotive Pty Ltd in the Federal Circuit and Family Court of Australia, seeking a remedy for unfair dismissal. Mr Rickard was employed as a sales manager by Darwin Automotive, a car dealership in Darwin. The dispute arose following Mr Rickard's termination of employment, with Mr Rickard contending that his dismissal was unjust and contrary to the principles enshrined in the Fair Work Act 2009. Darwin Automotive, on the other hand, maintained that the dismissal was fair and in accordance with the applicable provisions of the Act and the terms of the employment contract.

The court was tasked with determining whether Mr Rickard's dismissal was unfair within the meaning of section 383 of the Fair Work Act. This required an analysis of the reasons for the dismissal, the procedural fairness of the dismissal process, and whether the dismissal was a proportionate response to the alleged misconduct. The court also needed to consider the overall fairness of the dismissal, including whether there were any mitigating factors that should be taken into account.

The court found that the termination of Mr Rickard's employment was not unfair. The employer had provided clear evidence that the dismissal was based on genuine performance-related concerns and followed a fair process, including providing Mr Rickard with an opportunity to respond to the allegations against him. The court was satisfied that the dismissal was proportionate to the alleged misconduct and that there were no mitigating factors that would render the dismissal unfair. Consequently, the court dismissed Mr Rickard's application for an unfair dismissal remedy.

The court ordered that Mr Rickard's application be dismissed and that each party bear their own costs of the proceeding.

Joseph Rickard v Darwin Automotive Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established