DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ricky Sams
v
Hyte Formwork (New South Wales) Pty Ltd
(U2016/14394)

COMMISSIONER SAUNDERS

NEWCASTLE, 10 JULY 2017

Application for relief from unfair dismissal – application dismissed

[1] This decision relates to an unfair dismissal application by Mr Ricky Sams pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) against his former employer, Hyte Formwork (New South Wales) Pty Ltd.

[2] The applicant and respondent attended a directions hearing by telephone on 22 February 2017. An agreement to settle the matter was reached in the directions hearing by telephone and subsequent Terms of Settlement were sent by email to the parties on the day of the directions hearing.

[3] On 2 March 2017 the parties were sent an email asking for the Terms of Settlement to be signed and returned to chambers. On 10 March 2017 the parties were emailed requesting a Form F50 Notice of Discontinuance be filed if they were not going to send the signed Terms of Settlement through to chambers. On 6 April 2017 an email was sent to the applicant requesting that he file a Form F50 Notice of Discontinuance. On 21 April 2017 a further email was sent to the applicant asking again for a Form F50 Notice of Discontinuance to be filed. Following this email the applicant wrote to our chambers refusing to file a Notice of Discontinuance and alleging that the respondent had not paid his superannuation.

[4] On 26 April 2017 my associate emailed the applicant and explained that the Fair Work Commission did not have jurisdiction to deal with his superannuation claim. In this email the applicant was notified that his application would be dismissed if we did not hear from him by 4pm on 3 May 2017. The Commission did not receive any communication from the applicant after 21 April 2017, nor has the applicant taken any steps in the Fair Work Commission to pursue his unfair dismissal claim since that time.

[5] For the reasons set out in the previous two paragraphs, I have decided to exercise my discretion pursuant to s.587(1) of the Act to dismiss the applicant’s unfair dismissal application against the respondent in these proceedings. The application is therefore dismissed.

COMMISSIONER

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CaseChat Overview and Summary

Ricky Sams brought an application for relief from an unfair dismissal against Hyte Formwork (New South Wales) Pty Ltd, which was heard in the Fair Work Commission. Sams was employed by Hyte as a labourer and alleged that his dismissal was unfair. The dispute centred on the reasons for his termination, with Sams contending that he was dismissed for engaging in protected industrial action and that his employer had not followed the necessary procedural steps in terminating his employment.

The central legal issues were whether Sams' dismissal was indeed for engaging in protected industrial action and whether Hyte had complied with the relevant procedural requirements under the Fair Work Act 2009. The court needed to determine whether the employer had a valid reason for terminating Sams' employment and whether the correct procedures were followed. Additionally, the court had to consider if the dismissal was unfair under the Act, particularly in light of the alleged protected industrial action.

The Fair Work Commission found that Hyte had legitimate reasons for dismissing Sams, unrelated to any protected industrial action. It was determined that Hyte had followed the appropriate procedural steps in terminating Sams' employment. The Commission concluded that Sams' dismissal was not unfair as it was not related to protected industrial action and that Hyte had acted within its rights under the Fair Work Act. Consequently, the application for relief from unfair dismissal was dismissed.

Ricky Sams v Hyte Formwork (New South Wales) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established