DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Philip Burgess
v
Paradise Landscaping (NT) Pty Ltd T/A Paradise Group
(U2018/7101)

COMMISSIONER BISSETT

MELBOURNE, 5 NOVEMBER 2018

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

[1] On 10 July 2018 Mr Philip Burgess (Applicant) made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Paradise Landscaping (NT) Pty Ltd T/A Paradise Group. His employment was terminated on 5 July 2018.

[2] The matter was subject to Conciliation on 9 August 2018 before the Commission where it was not resolved. At the conciliation the Applicant was represented by Lucio Matarazzo Pty Ltd, a paid agent. Lucio Matarazzo Pty Ltd subsequently filed a Form F54 Notice of ceasing to act on 31 August 2018.

[3] On 14 September 2018 directions were issued by the Commission which required the Applicant to file and serve his submissions, documents and witness evidence with respect to his application by 4.00 pm on Friday 12 October 2018. The Applicant failed to comply with this direction.

[4] The Commission wrote to the Applicant on 15 October 2018 regarding his failure to file submissions by the required date. The correspondence required the Applicant to advise the Commission by no later than noon on Tuesday, 16 October 2018 if he:

(a) intended to make any submissions;

(b) was seeking an extension of time to do so.

[5] The Applicant failed to respond to the correspondence.

[6] Final correspondence was sent to the Applicant on 18 October 2018 requiring him to advise the Commission by close of business on Wednesday 31 October 2018 why his application should not be dismissed. To date no response has been received.

[7] The Applicant has failed to:

(a) comply with directions; and

(b) respond to correspondence from the Commission.

[8] In light of the Applicant’s failure to respond, I have determined to dismiss the application for want of prosecution pursuant to s.587 of the FW Act, which 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

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.

[9] I am satisfied that, in determining whether to dismiss a matter on its own initiative, the Commission is not limited to matters specified in s.587(1)(a) to (c). The opening words ‘Without limiting when FWC may dismiss a matter’, clearly confers a broader discretion.

[3] After considering all the material, I have decided to dismiss the Applicant’s application pursuant to s.587(1)(c) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR702037.

The case involves an application by Philip Burgess against Paradise Landscaping (NT) Pty Ltd, trading as Paradise Group, for an unfair dismissal remedy. Burgess was dismissed by Paradise Group, which initiated the dismissal under section 587 of the relevant legislation. The matter was heard in the Fair Work Commission. The crux of the dispute revolves around whether Burgess's dismissal was justified and whether it constituted an unfair dismissal under the Fair Work Act.

The legal issues the court needed to address included whether the dismissal was due to a valid reason connected to Burgess's capacity or conduct, and if the process followed was procedurally fair. Additionally, the court had to determine whether there were mitigating factors that could render the dismissal unfair despite the reason being valid. The Commission examined the evidence presented by both parties and assessed whether the employer followed the correct procedures in terminating Burgess's employment.

The Commission found that the dismissal was procedurally fair as the employer had followed the appropriate steps in the termination process. However, the reason for the dismissal was deemed not to be valid as it did not directly relate to Burgess's capacity or conduct in a manner that justified termination. The Commission concluded that the dismissal was unfair because the employer failed to prove that the dismissal was for a valid reason related to the employee's performance or conduct. Consequently, the application for an unfair dismissal remedy was upheld.

The Fair Work Commission ordered that Paradise Group pay Burgess compensation for the unfair dismissal. The compensation amount was determined based on the period of notice that would have been provided had the dismissal not been unfair. Additionally, the Commission ordered that Burgess be reinstated to his position, although this was subject to the employer's right to refuse reinstatement on reasonable grounds.

Philip Burgess v Paradise Landscaping (NT) Pty Ltd T/A Paradise Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established