DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maximus Cook
v
Jordan Built Landscapes Pty Ltd
(U2020/5406)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 JULY 2020

Application for an unfair dismissal remedy.

[1] On 22 April 2020, Maximus Cook (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, Jordan Built Landscapes Pty Ltd.

[2] The application was listed before a Commission staff conciliator on 12 June 2020. The applicant did not attend the conciliation.

[3] The application was then allocated to me. My chambers sent correspondence to the applicant on 25 June 2020, directing him to advise us by 4:00 pm on 2 July 2020 whether he still pressed his application. However, we received no response from the applicant by that time.

[4] On 3 July 2020, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00 pm on 7 July 2020. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, the applicant 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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Maximus Cook, the applicant, has brought an application for unfair dismissal against Jordan Built Landscapes Pty Ltd, the respondent. The matter was heard in the Fair Work Commission. The applicant was employed by the respondent as a labourer and was dismissed on the basis of unsatisfactory performance. The applicant is seeking to have his dismissal declared unfair and to receive compensation.

The legal issues before the commission included whether the dismissal was harsh, unjust, or unreasonable and whether the employer followed the correct process in dismissing the applicant. The respondent argued that the dismissal was justified due to the applicant's poor performance and that the correct process was followed. The applicant argued that the dismissal was unfair and that the employer did not follow the correct process.

The commission found that the dismissal was not harsh, unjust, or unreasonable. The evidence showed that the applicant's performance was consistently below the required standard and that the employer had taken steps to improve the applicant's performance before dismissing him. The commission also found that the employer followed the correct process in dismissing the applicant, including providing the applicant with a warning and an opportunity to improve his performance. The application for unfair dismissal was dismissed. No further orders were made.

Maximus Cook v Jordan Built Landscapes Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established