DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Dale-Thompson
v
Pacific Stone Pty Ltd
(U2020/9613)

DEPUTY PRESIDENT DEAN

SYDNEY, 31 AUGUST 2020

Application for an unfair dismissal remedy – application dismissed.

[1] On 14 July 2020 Unfair Dismissal Experts Pty Ltd (UDE) filed an application on behalf of Mr Scott Dale-Thompson (the Applicant) seeking a remedy pursuant to s.394 of the Fair Work Act 2009. The Applicant was employed by Pacific Stone Pty Ltd until his employment was terminated on 8 July 2020.

[2] The application was listed for telephone conciliation with a Fair Work Commission conciliator on 7 August 2020. The Applicant failed to attend and the conciliation did not take place. Later on the same day UDE filed a Form F54 – Notice of Representative Ceasing to Act.

[3] The Commission wrote to the Applicant seeking a response by 10 August 2020 as to whether he wished to proceed with the application. He was informed that upon the Commission receiving a response from him the matter would be listed for a Directions hearing. The Applicant did not respond to the correspondence.

[4] On 13 August 2020 further correspondence was sent to the Applicant noting that he had been directed to contact the Commission to confirm whether he intended to pursue his application but had failed to do so. He was given 7 days to respond and was advised that in the absence of a response his application would be dismissed. Again, no response was received.

[5] Section 587 of the Act provides the Commission with a broad discretion to dismiss an application. It reads:

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.

[6] I am satisfied that in failing to respond to the Commission’s correspondence, the Applicant has not demonstrated an intention to pursue his unfair dismissal application. Accordingly, I have decided to dismiss the application for want of prosecution pursuant to s.587 of the Act.

[7] An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Scott Dale-Thompson brought an application against Pacific Stone Pty Ltd seeking a remedy for unfair dismissal. The application was heard in the Fair Work Commission (FWC). The central issue before the Commission was whether the dismissal of Mr. Dale-Thompson was harsh, unjust, or unreasonable. The crux of the dispute lay in the employer's justification for the dismissal and whether the employer had acted in accordance with the principles of procedural fairness and the relevant legislative provisions under the Fair Work Act 2009.

The Commission meticulously examined the evidence and submissions presented by both parties. It assessed whether Pacific Stone Pty Ltd provided sufficient grounds for dismissal and whether the process leading up to the dismissal was fair and transparent. The employer argued that the dismissal was based on valid reasons related to the employee's conduct, which they deemed warranted such action. Conversely, Mr. Dale-Thompson contended that the process was flawed and the reasons inadequate. After weighing the arguments, the FWC determined that the employer had acted reasonably and followed the appropriate procedures. The employer's justification for the dismissal was deemed sufficient, and the process was found to be fair. Consequently, the application for an unfair dismissal remedy was dismissed.

The Fair Work Commission held that the dismissal was not harsh, unjust, or unreasonable, and thus the application for an unfair dismissal remedy was dismissed. The decision underscored the importance of adhering to procedural fairness and having justifiable grounds for dismissal, while also recognising the employer's right to manage their workforce.

Scott Dale-Thompson v Pacific Stone 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