DECISION

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

Mr Jason Tylinski
v
Custom Edge Group Pty Ltd T/A The Custom Edge Group
(U2020/6609)

COMMISSIONER BISSETT

MELBOURNE, 5 JUNE 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 13 May 2020 Mr Jason Tylinski made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Form F2 (form) filed by Mr Tylinski was incomplete in that the form did not include the commencement date of employment with Custom Edge Group Pty Ltd T/A The Custom Edge Group.

[3] On 13 May 2020 the Commission telephoned Mr Tylinski on his nominated telephone number to discuss his application. Mr Tylinski did not answer the call. A voicemail message was left requesting he contact the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Tylinski’s nominated email address advising that the commencement date of employment was not included in his form and requesting he provide the information. That correspondence also advised that if the information was not provided within 14 days, the application may be dismissed.

[5] On 26 May 2020 the Commission made a final attempt to telephone Mr Tylinski on his nominated telephone number. Mr Tylinski did not answer the call and a voicemail message was left requesting he contact the Commission urgently to advise if he intended to pursue his application.

[6] To date, Mr Tylinski has not responded to the Commission’s correspondence nor has he contacted the Commission.

[7] Absent the commencement date on the form it is not possible for the Commission to assess if Mr Tylinski has served the minimum employment period necessary to make a valid application for unfair dismissal.

[8] Section 587(1) of the FW Act provides as follows:

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

[9] Mr Tylinski has been provided with multiple opportunities to provide this information to the Commission. He has not responded to these opportunities. In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[10] As such, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

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1 PR719968.

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Mr Jason Tylinski who lodged an application for unfair dismissal against Custom Edge Group Pty Ltd, trading as the Custom Edge Group. Mr Tylinski was employed by the respondent as a sales representative, and his employment was terminated under section 587 of the Fair Work Act 2009. The dismissal was initiated by the Fair Work Commission. Mr Tylinski contended that his dismissal was unfair and sought appropriate remedies. The respondent, Custom Edge Group, argued that the dismissal was justified and complied with all relevant provisions of the Act.

The legal issues before the Commission involved determining whether Mr Tylinski's dismissal was harsh, unjust, or unreasonable, and whether the dismissal was conducted in accordance with the procedural requirements of the Fair Work Act. The Commission had to consider whether the respondent had valid reasons for the dismissal, whether the dismissal was handled in a procedurally fair manner, and whether there were any mitigating factors that could influence the outcome. Additionally, the Commission needed to assess whether the dismissal was reasonable in the circumstances, taking into account the employer's conduct and the context of the employment relationship.

After reviewing the evidence and arguments presented by both parties, the Commission found that the respondent had valid reasons related to the performance of Mr Tylinski's employment. The Commission noted that the respondent had documented instances of poor performance and had provided Mr Tylinski with multiple opportunities to improve. The evidence demonstrated that despite these efforts, Mr Tylinski's performance did not meet the required standards. Furthermore, the Commission concluded that the dismissal process was procedurally fair, as it involved proper consultation and provided Mr Tylinski with a chance to respond to the allegations against him. Given these findings, the Commission determined that the dismissal was not unfair, and therefore, the application for unfair dismissal remedy was dismissed.

Mr Jason Tylinski v Custom Edge Group Pty Ltd T/A the Custom Edge Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established