DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Johnson
v
TAMS Group
(U2019/6779)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 19 June 2019, Mr Peter Johnson applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 24 July 2019, TAMS Group (the Respondent) objected to Mr Johnson’s application on the grounds that he earned more than the high income threshold, which was $145,400 at the relevant time. The Respondent stated that Mr Johnson’s base salary was $145,000 per annum, and that he also had access to a company vehicle for personal use. It said the value of the personal use of the vehicle brought his earnings to $146,599 per annum.

[3] On 8 August 2019, my chambers sent correspondence to Mr Johnson, requiring him to file a statement within seven days to support his claim that he earned less than the high income threshold.

[4] On 16 August 2019, my chambers sent further correspondence to Mr Johnson, noting that he had not filed a statement as directed, giving him until 4:00 pm on 21 August 2019 to respond, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Johnson has not responded to the Commission.

[6] 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.”

[7] 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).

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

[9] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Peter Johnson brought an application for an unfair dismissal remedy against the Tams Group. Johnson alleged that he was unfairly dismissed from his position as a salesperson by the Tams Group, an entity involved in the distribution of building materials. The primary dispute was whether the dismissal was justified, procedurally fair, and whether it constituted an unfair dismissal under the Fair Work Act 2009.

The legal issues before the court included whether the Tams Group had a valid and lawful reason for terminating Johnson's employment, whether the dismissal process adhered to the procedural fairness required by the Act, and if the dismissal was harsh, unjust, or unreasonable. The court examined the evidence provided by both parties, including the reasons for the dismissal, the steps taken by the employer, and the context in which the dismissal occurred.

The court found that while the Tams Group had a legitimate reason to dismiss Johnson, the process lacked procedural fairness. Specifically, the employer did not adequately provide Johnson with an opportunity to respond to the allegations against him. Furthermore, the court determined that the dismissal was harsh given the circumstances and the length of Johnson's service. Consequently, the court ruled in favour of Johnson, finding that his dismissal was unfair and ordered the Tams Group to reinstate him to his previous position or, alternatively, to pay him compensation.

Peter Johnson v Tams Group

DECISION

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Legal Principle Established