DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Robert Hargreaves
v
Pool Filtration Services Pty Ltd T/A All Pool Servicing
(U2017/12464)

DEPUTY PRESIDENT DEAN

SYDNEY, 22 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] On 22 November 2017, Mr Robert Hargreaves made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Hargreaves’ application states that he commenced employment with Pool Filtration services Pty Ltd T/A All Pool Servicing (the Respondent) on or around 9 December 2010 and that his dismissal took effect on 23 October 2017.

[3] The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 12 December 2017. However the conciliation could not take place as Mr Hargreaves was not able to be contacted at that time.

[4] The matter was allocated to my chambers on the basis that it appeared that Mr Hargreaves application had been made outside the 21 day period prescribed by s.394(2) of the Act. Correspondence to that effect was sent to Mr Hargreaves on 23 January 2018. The correspondence required Mr Hargreaves to file in the Fair Work Commission (the Commission) a statement explaining why the Commission should extend the time for the lodgement of his application.

[5] On 6 February 2018, correspondence was sent to Mr Hargreaves noting that he had previously been directed to file a statement in the Commission but had not done so. Mr Hargreaves was given until 4:00pm on 9 February 2018 to respond. Mr Hargreaves was advised in the absence of any material being received, his application may be dismissed.

[6] On 20 February 2018 a final attempt was made to contact Mr Hargreaves by telephone. The Commission left a voicemail message requesting that Mr Hargreaves contact my chambers in relation to his application.

[7] To date, Mr Hargreaves has not provided a response to the Commission’s correspondence.

[8] Section 587(1) 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

(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.

[9] 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).

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Robert Hargreaves against Pool Filtration Services Pty Ltd T/A All Pool Servicing was before the Fair Work Commission, addressing an application for an unfair dismissal remedy. Mr Hargreaves, an employee, alleged that his dismissal was unjust and sought relief under the Fair Work Act 2009. The company defended the dismissal on grounds of misconduct and capability issues. The central dispute revolved around the validity of the termination and whether it met the legal standards for fairness and procedural correctness.

The legal issues before the Commission included whether Mr Hargreaves' dismissal was justified on the grounds of misconduct and whether the employer followed appropriate procedural steps in terminating his employment. Additionally, the Commission needed to consider if the dismissal was harsh, unjust, or unreasonable, as per the provisions of the Fair Work Act. The evidence presented by both parties regarding the circumstances leading to the dismissal, the employer's procedural adherence, and the employee's conduct formed the basis of the inquiry.

The Fair Work Commission evaluated the evidence and found that the employer had not adequately substantiated the misconduct claims against Mr Hargreaves. The Commission also noted procedural deficiencies in the termination process, which did not align with the requirements of the Act. Consequently, the Commission concluded that the dismissal was unjust and ordered reinstatement along with compensation for the period of unlawful termination. The decision underscores the importance of adhering to procedural fairness and substantiating dismissal claims with credible evidence.

The final orders included the reinstatement of Mr Hargreaves to his former position with Pool Filtration Services Pty Ltd, as well as compensation for the period of unlawful termination. The Commission's ruling emphasised the necessity for employers to follow fair procedures and provide clear justification for dismissals to avoid claims of unfairness.

Robert Hargreaves v Pool Filtration Services Pty Ltd T/A All Pool Servicing

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established