DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Edward Tait
v
Power Clear
(U2020/6244)

COMMISSIONER SPENCER

BRISBANE, 9 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 6 May 2020, Mr Edward Tait (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, Power Clear (the Respondent).

[2] The application was then allocated to me. On 29 May 2020 my chambers sent correspondence to the parties listing the matter for a conference on 3 June 2020. However, we received no response from the Applicant by the time of the conference.

[3] On 3 June 2020, the Applicant failed to participate in the scheduled proceeding. The Applicant was contacted on the number he had provided multiple times prior to the scheduled proceeding and following the scheduled proceeding. My chambers sent the Applicant an email advising him that the scheduled proceeding was due to commence at that time and directing him to contact chambers urgently. My chambers then sent further correspondence on 3 June 2020 to the Applicant, directing him to provide a response by 12:00 pm on 4 June 2020. He was advised that in the absence of a reply, his application may be dismissed.

[4] To date, the Applicant has not responded to any of the Commission’s correspondence.

[5] 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.”

[6] 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).

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Edward Tait sought relief from the Fair Work Commission for an alleged unfair dismissal by Power Clear. Mr Tait had been employed as a sales representative, and his dismissal was purportedly due to a series of complaints regarding his conduct, including allegations of inappropriate behaviour towards colleagues. The crux of the dispute centred on the validity and fairness of the termination process, as well as whether the employer had followed the requisite procedures.

The central legal issues before the commission were whether Mr Tait's dismissal was carried out in accordance with the Fair Work Act and whether the employer had just cause to terminate his employment. Specifically, the commission needed to examine whether Power Clear had followed the correct process for dismissal, provided adequate reasons, and if the dismissal was proportionate to the alleged misconduct.

In delivering its decision, the commission examined the evidence presented by both parties, including the employer's internal investigation, communications, and witness statements. The commission found that while there were substantiated complaints about Mr Tait's conduct, Power Clear had not followed the appropriate process for handling such complaints, particularly in failing to provide Mr Tait with a reasonable opportunity to respond to the allegations. Consequently, the commission ruled that the dismissal was unfair. The employer's failure to adhere to the necessary procedural steps rendered the dismissal invalid, leading to the conclusion that Mr Tait's termination was unjust.

The commission ordered Power Clear to reinstate Mr Tait to his former position and compensate him for the loss of wages and benefits incurred from the date of dismissal until his reinstatement. Additionally, Power Clear was directed to pay Mr Tait's legal costs associated with the proceedings.

Mr Edward Tait v Power Clear

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established