DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Bernard Smith
v
MTA Contracting
(U2019/9160)

VICE PRESIDENT CATANZARITI

SYDNEY, 17 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 16 August 2019, Michael Smith applied for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in respect of his employment with MTA Contracting (the Respondent). Mr Smith stated that his dismissal took effect on 11 July 2019. The Respondent says that Mr Smith’s dismissal took effect on 4 July 2019.

[2] On 27 August 2019, the Respondent filed an Employer’s Response (Form F3), raising a jurisdictional objection on the basis that Mr Smith’s application was lodged out of time.

[3] On 27 September 2019, my chambers sent Mr Smith correspondence about the extension of time issue. It noted that, even accepting the later date of effect, he had lodged his application 15 days outside the 21-day period prescribed by s.394(2) of the Act. I directed him either to provide a statement by 4:00 pm on 4 October 2019 in support of obtaining an extension of time in which to validly lodge his application, or confirm that he wished to rely solely on the information provided in his originating application. However, no response was received.

[4] On 8 October 2019, my chambers sent further correspondence to Mr Smith, directing him to respond by 4:00 pm on 11 October 2019, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Smith 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

Michael Bernard Smith brought an application for unfair dismissal remedy against MTA Contracting before the Fair Work Commission. Mr Smith alleged that his dismissal was unjust and sought reinstatement or compensation. MTA Contracting contested the application, asserting that the dismissal was lawful and justified under the applicable employment laws. The central issue before the Commission was whether Mr Smith's dismissal met the criteria for unfair dismissal under the Fair Work Act 2009. This involved examining the procedural fairness of the dismissal process and whether the dismissal was related to the termination of Mr Smith's employment.

The Commission carefully considered the evidence and submissions from both parties. It assessed whether MTA Contracting followed the correct procedures in terminating Mr Smith's employment and whether the reasons for dismissal were valid and reasonable. The Commission noted the evidence regarding Mr Smith's performance, behaviour, and the circumstances leading to his termination. It also examined MTA Contracting's policies and the actions taken prior to the dismissal. The Commission concluded that while there were issues with the procedural aspects of the dismissal, the substantive reasons for terminating Mr Smith's employment were valid. Consequently, the application for an unfair dismissal remedy was dismissed.

The Fair Work Commission determined that the dismissal of Mr Smith was not unfair. The Commission held that MTA Contracting had legitimate reasons for terminating Mr Smith's employment and that the process, while not perfect, did not render the dismissal unjust. The Commission's decision was based on a detailed analysis of the evidence and a careful consideration of the legal principles governing unfair dismissal. Mr Smith's application was rejected, and no orders for reinstatement or compensation were made.

Michael Bernard Smith v MTA Contracting

DECISION

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