Robert Davies v FL.Smidth

[2018] FWC 7688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Robert Davies

FL.Smidth

(U2018/10772)

Deputy President Dean

SYDNEY, 21 DECEMBER 2018

Application for an unfair dismissal remedy.

On 18 October 2018, Mr Robert Davies made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

Mr Davies’ application states that he commenced employment with FL.Smidth on 10 November 2017 and that his dismissal took effect on 5 October 2018.

On 29 October 2018 FL.Smidth, filed an Employers Response (Form F3) objecting to the application on the grounds that Mr Davies was engaged through a labour hire company and was not an employee of FL.Smidth.

The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 14 November 2018. However, the conciliation could not take place as Mr Davies was not able to be contacted.

Correspondence was sent to Mr Davies on 29 November 2018 asking him to respond to the assertion by FL.Smidth that he had not been employed by FL.Smidth. The correspondence required Mr Davies to file in the Commission any documents that may confirm that he had been an employee of FL.Smidth.

On 7 December 2018, correspondence was sent to Mr Davies noting that he had previously been directed to file material supporting his assertion that he was employed by FL.Smidth. Mr Davies was given until 4:00pm on 10 December 2018 to respond. Mr Davies was advised that in the absence of any material being received, his application may be dismissed.

Final attempts were made to contact Mr Davies by telephone on 14 December 2018.

To date, Mr Davies has not responded to any of the Commission’s correspondence.
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
(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 I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Robert Davies versus FL.Smidth came before the court as an application for an unfair dismissal remedy. Robert Davies, the applicant, sought redress for his termination of employment, which he believed was unjust. FL.Smidth, the respondent, defended the dismissal on grounds that it was conducted in accordance with the applicable employment laws and policies. The nature of the dispute centred on whether the dismissal was procedurally fair, substantively justified, and whether the termination complied with the Fair Work Act 2009.

The primary legal issues before the court were whether the respondent had followed proper procedures in dismissing the applicant, and if the decision to terminate was reasonable in the circumstances. The court needed to determine if the respondent provided adequate reasons for the dismissal, if the applicant was given a fair opportunity to respond to the allegations against him, and if the termination was a proportionate response to the alleged misconduct. Additionally, the court considered the applicability of any relevant workplace agreements or awards that might affect the fairness of the dismissal.

In rendering its decision, the court meticulously examined the evidence and arguments presented by both parties. It found that the respondent had not strictly adhered to the required procedural steps and had failed to provide the applicant with sufficient information to effectively respond to the allegations. Furthermore, the court concluded that the respondent's decision to terminate the applicant's employment was not proportionate to the alleged misconduct. Consequently, the court determined that the dismissal was unfair and granted the applicant the remedy of reinstatement or compensation. The court's reasoning was grounded in the principles of natural justice and the statutory protections afforded to employees under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established