Mr Warren Williams v Hawks Nest Lawn Mowing Service

[2017] FWC 6416

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Warren Williams

Hawks Nest Lawn Mowing Service

(U2017/10824)

Deputy President Dean

SYDNEY, 4 DECEMBER 2017

Application for an unfair dismissal remedy.

On 9 October 2017, Mr Warren Williams made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

Mr Williams’ application states that he commenced employment with Hawks Nest Lawn Mowing Service on 15 February 2011 and that his dismissal took effect on 20 September 2017.

The application was listed for a telephone conciliation before a Fair Work Commission conciliator on 31 October 2017. However the conciliation could not take place as Mr Williams was not able to be contacted at that time.

The matter was therefore allocated to my Chambers to be further allocated for arbitration.

On 10 November 2017, my Chambers sent the following letter to Mr Williams by express post:

“Dear Mr Williams,

Re: U2017/10824 – Warren Williams v Hawks Nest Lawn Mowing Service

I refer to your application for unfair dismissal remedy that you lodged with the Fair Work Commission (the Commission) on 9 October 2017.

Your application has now been allocated to Deputy President Dean.

The Commission has made a number of attempts to contact you by telephone, on 26 October 2017 and 8 November 2017, and by post, on 26 October 2017 and 31 October 2017.

Despite our requests for you to contact the Commission, unfortunately we have not received a response from you.

You are directed to advise our chambers within 7 days if you would like to continue with your unfair dismissal application.

If we do not hear from you by close of business on Friday, 17 November 2017, then your application may be dismissed without any further notice to you.”

On 23 November 2017, a further letter was sent to Mr Williams by express post noting that he had previously been directed to contact the Commission to confirm whether he intended to pursue his application but had not done so. Mr Williams was given until 4pm on 28 November 2017 to respond. Mr Williams was advised in the absence of any response, his application may be dismissed.

On 22 November 2017 and 23 November 2017, my Chambers attempted to contact Mr Williams by telephone, however the calls went answered and we were not able to leave a voicemail message.

To date, Mr Williams has not replied to any of 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

Mr Warren Williams commenced proceedings against Hawks Nest Lawn Mowing Service in the Fair Work Commission, seeking a remedy for unfair dismissal. The central issue before the court was whether Mr Williams' dismissal was unjust under the Fair Work Act 2009. Mr Williams claimed that his dismissal was unjustified and sought reinstatement or compensation. Hawks Nest Lawn Mowing Service argued that the dismissal was fair, citing reasons related to Mr Williams' performance and conduct. The court had to determine whether the company's reasons for dismissal were valid and whether the process followed was procedurally fair.

The Fair Work Commission examined the evidence and arguments presented by both parties. It considered the nature of the employment, the conduct of Mr Williams, and the company's decision-making process. The court found that the company had provided adequate reasons for the dismissal, which were substantiated by evidence of Mr Williams' unsatisfactory performance and conduct issues. The Commission also noted that the company followed its own policies and procedures in handling the dismissal, including providing Mr Williams with opportunities to improve his performance and address the conduct concerns. Consequently, the court concluded that the dismissal was procedurally fair and substantively justified.

In light of the findings, the Fair Work Commission dismissed Mr Williams' application for an unfair dismissal remedy. The court determined that Hawks Nest Lawn Mowing Service had acted reasonably and in accordance with the law in terminating Mr Williams' employment. The company's reasons for dismissal were valid, and the process was fair, leaving no ground for the remedy sought by Mr Williams. The Commission's decision was based on a thorough analysis of the evidence and the applicable legal standards.

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