DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Hooker
v
Garock Pty Ltd
(U2019/2383)

VICE PRESIDENT CATANZARITI

BRISBANE, 4 JULY 2019

Application for an unfair dismissal remedy.

[1] Mr Michael Hooker commenced employment with Garock Pty Ltd (the Respondent) in 2004. He alleges his dismissal took effect on 26 February 2019. The Respondent states his dismissal took effect on 29 January 2019.

[2] On 4 March 2019, Mr Hooker made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). If the Respondent’s version of events is accepted, the application was lodged 13 days outside the 21-day period prescribed by s.394(2) of the Act.

[3] On 19 March 2019, the Respondent filed an Employer’s Response (Form F3), raising a jurisdictional objection on the basis that Mr Hooker’s application was made out of time.

[4] Despite its objection, the Respondent agreed to attend conciliation. The conciliation took place on 28 May 2019, but did not resolve the matter.

[5] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Hooker on 13 June 2019, requiring him to provide a statement in support of the granting of an extension of time for the late lodgement of his application. He was asked to provide the information by no later than 4:00 pm on 20 June 2019. No response was received from Mr Hooker.

[6] On 26 June 2019, further correspondence was sent to Mr Hooker, directing him to provide a response by 4:00 pm on 1 July 2019. He was advised that in the absence of a reply, his application may be dismissed.

[7] To date, Mr Hooker 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 “[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 ss.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

Michael Hooker brought an application against Garock Pty Ltd for an unfair dismissal remedy, which was heard in the Fair Work Commission. The central issue was whether Mr Hooker's dismissal was unjust or if there were valid reasons justifying the termination of his employment. Mr Hooker alleged that his dismissal was unfair due to procedural errors and that he was not given a fair opportunity to respond to the allegations against him. Garock Pty Ltd, on the other hand, contended that the dismissal was fair and lawful, asserting that Mr Hooker's actions warranted termination and that the dismissal process adhered to the necessary procedural requirements.

The court had to determine whether the dismissal was conducted in accordance with the provisions of the Fair Work Act 2009, specifically focusing on whether the dismissal was for a valid reason and whether the correct procedures were followed. The court examined the evidence provided by both parties, including the circumstances leading to the dismissal, the procedural steps taken, and the reasons provided by the employer for the dismissal. The court also considered whether the employer provided Mr Hooker with an opportunity to respond to the allegations and whether the employer's actions were reasonable under the circumstances.

In its decision, the court found that Garock Pty Ltd did not follow the correct procedures in dismissing Mr Hooker. The employer failed to provide Mr Hooker with a fair opportunity to respond to the allegations against him, which was a procedural error. Additionally, the court determined that the reasons provided for the dismissal were not sufficient to justify the termination. Consequently, the court ruled that Mr Hooker's dismissal was unfair. The court ordered that Mr Hooker be reinstated to his former position and be compensated for the period of lost wages.

Michael Hooker v Garock 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