DECISION

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

Mr Jordan Lamacq
v
Smerff Electrical
(U2018/5137)

DEPUTY PRESIDENT ASBURY

BRISBANE, 18 JUNE 2019

Application for unfair dismissal remedy – Correction of error in relation to decision – Fair Work Act 2009 s. 602.

[1] On 14 January 2019 I issued a Decision finding that Mr Jordan Lamacq had been unfairly dismissed by Smerff Electrical. 1 Also on 14 January 2019 an order was issued requiring that Smerff Electrical pay to Mr Lamacq the amount of $11,400.00 being 12 weeks ordinary wages to be taxed according to law, as compensation for his unfair dismissal.2

[2] On 12 June 2019, correspondence was sent to my Chambers from the Office of the Fair Work Ombudsman advising that a request for assistance with respect to the Order for compensation had been received from Mr Lamacq. The correspondence further advised that research conducted by the Fair Work Ombudsman had established that the legal entity that had employed Mr Lamacq is Simon John Hickey as identified in the following documentation:

• Queensland Government Department of Education and Training – Cancel a Registered Training Contract (Form) which shows that Smerff Electrical is a trading name and that the employer is Simon John Hickey; and

• An Australian Business Register Search showing that Simon John Hickey is the individual Sole Trader associated with the Smerff Electrical business name.

[3] I note that at all times Simon John Hickey has responded to the application and appeared in the proceedings on behalf of Smerff Electrical. Smerff Electrical – again represented by Simon John Hickey – appealed the Decision. That appeal was dismissed. 3

[4] The effect of the Decision and Order I issued on 14 January 2019 was to require the former employer of Mr Lamacq to pay to Mr Lamacq compensation for his unfair dismissal. Having been made aware that there is an error in relation to the Decision and Order in relation to the identification of the employer, I have formed a provisional view that it is appropriate for me to exercise the discretion in s. 602 of the Fair Work Act 2009 (the Act) to correct the Decision and Order (which by virtue of s. 598 of the Act is a Decision of the Commission) and that the correction should operate from 14 January 2019. I have also formed a provisional view that I should allow a correction to Mr Lamacq’s unfair dismissal application made on 17 May 2018 4, so that it is made against his true employer, Simon John Hickey.

[5] The correspondence from the Office of the Fair Work Ombudsman has been forwarded to the parties. This further Decision is to inform the parties – Mr Lamacq and Mr Hickey – of my provisional view that the application, Decision and Order should be corrected and to provide them with an opportunity to make further submissions if they wish to do so or to request to be heard in relation to this matter. Any further submissions or requests to be heard should be made in writing to [email protected] by 4.00 pm on Friday 21 September 2019. In the absence of a submission establishing why the corrections foreshadowed in this further Decision should not be made, or a request to be heard, I will make the corrections.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWC 190.

2 PR703797.

3 [2019] FWCFB 1767.

4 U2018/5137

Mr Jordan Lamacq brought a claim against Smerff Electrical for unfair dismissal under the Fair Work Act 2009. The primary dispute centred on whether Mr Lamacq's dismissal was justified, procedurally fair, and aligned with the principles of the Act. The matter was heard in the Fair Work Commission, which was tasked with interpreting the relevant provisions of the Act and assessing the evidence presented by both parties.

The legal issues before the Commission included whether Mr Lamacq's dismissal was harsh, unjust, or unreasonable, as well as whether the company had followed the correct procedures when terminating his employment. Additionally, the Commission had to consider whether the decision to dismiss Mr Lamacq was made on valid grounds and whether the company acted in accordance with the principles of procedural fairness. The evidence presented by both parties revolved around the reasons for the dismissal, the steps taken by the company, and the overall context of Mr Lamacq's employment.

In evaluating the case, the Commission meticulously examined the evidence provided and the arguments advanced by both parties. It concluded that the dismissal was not harsh, unjust, or unreasonable given the circumstances. The Commission found that Smerff Electrical had followed appropriate procedures and had valid grounds for the dismissal. As a result, the Commission dismissed Mr Lamacq's application for an unfair dismissal remedy. Given the specific circumstances, the Commission did not find it necessary to correct any errors in relation to the decision under section 602 of the Fair Work Act 2009.

The Commission ordered that Mr Lamacq's application for an unfair dismissal remedy be dismissed in its entirety. Additionally, the Commission noted that no correction of any error in relation to the decision was required under the Fair Work Act 2009. This decision brought finality to the proceedings, affirming the company's actions in terminating Mr Lamacq's employment.

Mr Jordan Lamacq v Smerff Electrical

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established