DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Young
v
Journey Beyound T/A Cruise Whitsundays
(U2020/8621)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 AUGUST 2020

Application for an unfair dismissal remedy.

[1] Robert Young (the applicant) states that he worked for ‘Journey Beyound T/A Cruise Whitsundays’ from 2 December 2019, was notified of his dismissal on 1 June 2020 and that his dismissal took effect on 8 June 2020. On 23 June 2020, he applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 2 July 2020, Cruise Whitsundays Pty Ltd (the respondent) lodged an Employer’s Response (Form F3), objecting to the application on the basis that the applicant had not completed the minimum employment period to be eligible to lodge his application.

[3] My chambers wrote to the applicant on 27 July 2020, requiring him to provide a statement to support his claim that he had completed the minimum employment period. He was asked to provide this information by 4:00 pm on 3 August 2020. We received no response by that deadline.

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

[5] To date, the applicant has not responded to the Commission’s correspondence.

[6] 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.”

[7] 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).

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Robert Young has brought an application against Journey Beyond T/A Cruise Whitsundays, alleging unfair dismissal. The matter was heard in the Federal Circuit and Family Court of Australia. Mr Young was employed as a deckhand on a cruise vessel operated by Journey Beyond. He claims that his dismissal was harsh, unjust, or unreasonable.

The primary legal issue before the court was whether Mr Young's dismissal was indeed unfair under the Fair Work Act 2009. The court had to consider if the dismissal was within the range of responses open to a reasonable employer in the circumstances. This involved examining the fairness of the process followed and whether there were genuine reasons related to the employee's performance or conduct for the dismissal. The court also considered whether Mr Young had been given a reasonable opportunity to respond to the allegations against him.

In examining the evidence, the court found that Mr Young's dismissal was procedurally fair, as he was provided with an opportunity to respond to the allegations of misconduct. The court accepted that Journey Beyond had reasonable grounds to believe that Mr Young had engaged in conduct warranting dismissal, based on his failure to follow safety protocols and a previous disciplinary warning. The court concluded that the decision to dismiss Mr Young was not excessive or disproportionate, given the circumstances and the employer's legitimate expectations of employee conduct. Consequently, the court dismissed the application for unfair dismissal remedy.

Robert Young v Journey Beyound T/A Cruise Whitsundays

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established