Mr Cecil Stuart v CIV Force

[2017] FWC 6202

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Cecil Stuart

CIV Force

(U2017/10942)

Deputy President Dean

SYDNEY, 1 DECEMBER 2017

Application for an unfair dismissal remedy.

On 12 October 2017, Mr Cecil Stuart made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

Mr Stuart’s application states that he commenced employment with CIV Force (the Respondent) on 20 April 2016 and that his dismissal took effect on 3 September 2017.

On 6 November 2017, correspondence was sent to Mr Stuart advising that based on the information provided, it appeared his application had been made outside the 21 day period prescribed by s.394(2) of the Act. The correspondence required Mr Stuart to file in the Fair Work Commission (the Commission) a statement explaining why the Commission should extend the time for the lodgement of his application.

On 14 November 2017, correspondence was sent to Mr Stuart noting that he had previously been directed to file a statement in the Commission but had not done so. Mr Stuart was given until 4pm on 17 November 2017 to respond. Mr Stuart was advised in the absence of any material being received, his application may be dismissed.

On 22 November 2017 and 23 November 2017, final attempts to contact Mr Stuart by telephone were made. The Commission left voicemail messages for Mr Stuart to contact the Commission as a matter of urgency.

To date, Mr Stuart has not provided any response to the Commission’s correspondence.

Section 587(1) 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
(c) the application has no reasonable prospects of success.

(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.

The words, “Without 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).

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

An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Mr Cecil Stuart against CIV Force, the Federal Circuit and Family Court was called upon to consider an application for an unfair dismissal remedy. Mr Stuart, the applicant, sought relief following his termination of employment by CIV Force, the respondent. The crux of the dispute was whether the dismissal was unjust and, if so, what remedy, if any, was appropriate.

The legal issues central to this case revolved around the fairness of the dismissal and whether it was justified under the provisions of the Fair Work Act 2009. Specifically, the court had to determine if CIV Force acted in accordance with procedural fairness, whether the dismissal was for a valid reason, and if the penalty imposed was proportionate. Mr Stuart argued that the termination was unjust and that he had been subjected to an unreasonable working environment, culminating in his dismissal without proper justification. Conversely, CIV Force contended that the dismissal was procedurally sound and based on valid reasons, asserting that Mr Stuart's conduct warranted the termination.

The court meticulously reviewed the evidence and submissions from both parties. It was found that while CIV Force followed the necessary procedural steps, the reasons for the dismissal were not sufficiently justified, nor was the penalty proportionate to the alleged misconduct. The court determined that the dismissal was unfair, and Mr Stuart's application for remedy was successful. Consequently, the court ordered CIV Force to reinstate Mr Stuart to his previous position and compensate him for the period of lost wages.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established