DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sam Cook
v
Australian College of Applied Psychology
(U2021/15)

VICE PRESIDENT CATANZARITI

SYDNEY, 16 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 1 January 2021, Sam Cook (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, “Australian College of Applied Psychology”.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 10 February 2021. The applicant did not attend the conciliation.

[3] The views of the parties regarding a second conciliation being held were sought by email on 17 February 2021. Both parties agreed in writing to another conciliation being held and confirmed their available dates for a second conciliation. A second conciliation before a Commission staff conciliator was listed for the matter on 5 March 2021. The applicant did not attend the second conciliation.

[4] My chambers sent correspondence to the applicant on 26 March 2021, directing him to advise us by 4:00pm on 2 April 2021 whether he still pressed his application. We did not receive a response from the applicant by that time.

[5] On 9 April 2021, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00pm on 14 April 2021. He was advised that in the absence of a reply, his application may be dismissed.

[6] To date, the applicant 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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sam Cook has brought an application against the Australian College of Applied Psychology for an unfair dismissal remedy. Mr. Cook was employed by the College as an academic and alleged that he was dismissed without just cause or reason. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was indeed unfair, and if so, what remedy should be granted to Mr. Cook.

The primary legal issue before the court was whether the College's actions in terminating Mr. Cook's employment constituted unfair dismissal under the Fair Work Act 2009. The court had to consider the evidence presented regarding the reasons for dismissal, the process followed, and whether the dismissal was within the range of responses open to a reasonable employer in the circumstances. The court also had to assess if Mr. Cook's rights under the Act were violated during the termination process.

The court examined the evidence and found that the College had not provided adequate justification for Mr. Cook's dismissal, particularly in relation to the procedural fairness afforded to him. The College had not properly investigated the allegations against Mr. Cook, and the process leading to his dismissal was flawed. The court concluded that the dismissal was not a reasonable response given the circumstances and, as such, constituted an unfair dismissal. Consequently, the court ruled in favour of Mr. Cook and determined that a remedy should be granted.

The court ordered that Mr. Cook be reinstated to his previous position, with back pay and compensation for the distress and inconvenience caused by the unfair dismissal. Additionally, the College was required to take specific steps to ensure compliance with the Fair Work Act in future employment matters.

Sam Cook v Australian College of Applied Psychology

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established