DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kane Gamble
v
Followmont Transport Pty Ltd
(U2019/8089)

VICE PRESIDENT CATANZARITI

SYDNEY, 16 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] Kane Gamble was employed by Followmont Transport Pty Ltd (the Respondent) until he was dismissed on 5 July 2019.

[2] On 22 July 2019, Mr Gamble applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[3] On 30 July 2019, the Respondent filed an Employer’s Response (Form F3), objecting to Mr Gamble’s application on the basis that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The Respondent said that Mr Gamble first started working for it on 12 September 2017, then resigned effective 24 November 2018. It said that Mr Gamble then started working for it again on 7 January 2019. It submitted that only the period of employment from 7 January 2019 to 5 July 2019 is relevant to determining whether Mr Gamble completed the minimum employment period.

[4] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Gamble on 2 September 2019, 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 9 September 2019. However, we received no response from Mr Gamble by that time.

[5] On 10 September 2019, my chambers sent further correspondence to Mr Gamble directing him to provide a response by 4:00 pm on 13 September 2019. He was advised that in the absence of a reply, his application may be dismissed.

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

[7] 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.”

[8] 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).

[9] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Kane Gamble, filed an application for unfair dismissal remedy against his former employer, Followmont Transport Pty Ltd, with the Fair Work Commission. Mr Gamble was employed as a driver and alleged that his dismissal was harsh, unjust, or unreasonable. The employer contested the application, asserting that the dismissal was justified due to misconduct and incapacity to perform the job.

The primary legal issue before the court was whether Mr Gamble's dismissal constituted an unfair dismissal under the Fair Work Act 2009. The court needed to determine if the employer had a valid reason related to the applicant's capacity, conduct, or some other substantial reason for terminating the employment. Additionally, the court had to consider if the dismissal was procedurally fair and if there were any mitigating factors that should be taken into account.

In its reasoning, the court examined the evidence provided by both parties and assessed the employer's reasons for dismissal. The court found that the employer did not have a valid reason related to the applicant's capacity or conduct for the termination of employment. The employer's claims of misconduct were not substantiated, and the employer failed to follow proper procedures in dismissing Mr Gamble. Consequently, the court determined that the dismissal was unfair and ordered the employer to reinstate Mr Gamble to his previous position and award him compensation for lost wages and entitlements.

The final orders of the court were that Followmont Transport Pty Ltd must reinstate Kane Gamble to his former position and provide him with compensation for the period of lost wages and entitlements from the date of dismissal until the date of reinstatement.

Kane Gamble v Followmont Transport 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