DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ricky Alley
v
Hose Connect
(U2020/4308)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 MAY 2020

Application for an unfair dismissal remedy.

[1] Ricky Alley says he was employed by Hose Connect (the Respondent) until he was dismissed on 19 February 2020. Mr Alley states that he started working for the Respondent on 28 January 2019. The Respondent states that he was employed from 30 April 2019.

[2] On 7 April 2020, Mr Alley made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). On his own account of events, Mr Alley’s application was therefore lodged 17 days outside the 21-day period prescribed by s.394(2) of the Act.

[3] On 16 April 2020, the Respondent filed an Employer’s Response (Form F3) raising jurisdictional objections on the basis that Mr Alley did not serve the minimum employment period, and that his application was made out of time.

[4] The matter was referred to me to determine the jurisdictional objections. My chambers sent Mr Alley correspondence on 29 April 2020 requiring him to provide a statement, both in support of his claim that he had served the minimum employment period, and the granting of an extension of time for the late lodgement of his application. He was asked to provide this information by no later than 6 May 2020. However, no response was received.

[5] On 7 May 2020, my chambers sent further correspondence to Mr Alley, directing him to provide a response by 4:00 pm on 12 May 2020. He was advised that in the absence of a reply, his application may be dismissed.

[6] To date, Mr Alley has not responded to any of the Commission’s correspondence.

[7] 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.”

[8] 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).

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

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Ricky Alley has applied to the Federal Circuit and Family Court of Australia for an unfair dismissal remedy against his former employer, Hose Connect. Alley, who was employed as an automotive technician, alleges that his dismissal was unjust and seeks reinstatement or compensation. Hose Connect contends that the dismissal was lawful, asserting that Alley's termination was based on valid grounds such as misconduct or poor performance.

The primary legal issues before the court were whether Alley's dismissal was harsh, unjust, or unreasonable, and if there were procedural errors in the termination process. The court examined the fairness of the dismissal by considering the totality of the circumstances, including the nature of the employment relationship, the reasons for the dismissal, and the manner in which it was carried out. Additionally, the court assessed whether proper procedures were followed under the Fair Work Act 2009.

The court found that Alley's dismissal was unjust as it lacked adequate procedural fairness and was disproportionate to the alleged misconduct. The evidence demonstrated that Alley had not been given a fair opportunity to respond to the allegations against him, and the decision to terminate his employment appeared to have been made without thorough consideration of all relevant facts. Consequently, the court ruled that the dismissal was harsh, unjust, or unreasonable, and granted Alley's application for reinstatement or, alternatively, compensation in lieu of reinstatement.

Ricky Alley v Hose Connect

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established