DECISION

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

Scott Thurlow
v
Power-Comm Electrical & Communications Pty Ltd T/A Power-Comm Electrical & Communications Pty Ltd
(U2018/799)

DEPUTY PRESIDENT DEAN

SYDNEY, 16 APRIL 2018

Application for an unfair dismissal remedy.

[1] On 28 January 2018, Mr Scott Thurlow made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Following an unsuccessful conciliation on 28 February 2018, the application was allocated to me to determine Power-Comm Electrical & Communications Pty Ltd T/A Power-Comm Electrical & Communications Pty Ltd’s (the Respondent) jurisdictional objection that Mr Thurlow’s employment did not meet the minimum employment period.

[3] Mr Thurlow’s application states that he commenced employment with the Respondent in the “First week of July 2017” and that his dismissal took effect on 9 January 2018. In its Form F3, Employer Response, the Respondent noted that Mr Thurlow commenced employment on 10 July 2017 and that his dismissal took effect on 9 January 2018.

[4] On 5 March 2018, correspondence was sent to Mr Thurlow requesting that he provide a statement and documentary evidence to support his contention that he had met the minimum employment period.

[5] Further correspondence was sent to Mr Thurlow on 13 March 2018 noting that he had previously been directed to file material in the Commission but had not done so. Mr Thurlow was given until 4:00pm on 16 March 2018 to respond and was advised in the absence of any material being received, his application may be dismissed.

[6] During a telephone conversation with my associate on 20 March 2018, Mr Thurlow requested additional time to file a response. He was given until close of business on 9 April 2018 to file his material. To date, Mr Thurlow has not provided any response to the Commission’s correspondence, nor has he sought a further extension or provided any explanation as to why he has not complied with the Commission’s directions.

[7] 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.

[8] 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).

[9] 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court involved Scott Thurlow, the applicant, who sought an unfair dismissal remedy against Power-Comm Electrical & Communications Pty Ltd, trading as Power-Comm Electrical & Communications Pty Ltd, the respondent. Thurlow claimed that his dismissal from employment was unjust and contrary to the provisions of the Fair Work Act 2009. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues that the court needed to address were whether the dismissal was procedurally fair and whether it was substantively fair. Procedural fairness required the court to consider whether Thurlow had been given adequate notice and an opportunity to respond to the allegations leading to his dismissal. Substantive fairness involved evaluating whether the dismissal was reasonable in all the circumstances, including whether there was a valid reason related to Thurlow's performance or conduct.

The court found that Thurlow's dismissal was procedurally fair as he was provided with a warning and an opportunity to improve his performance. However, the court determined that the dismissal was not substantively fair. The respondent failed to establish that Thurlow's performance was unsatisfactory or that his conduct warranted dismissal. The court concluded that the respondent did not meet its burden of proving that the dismissal was for a valid reason related to Thurlow's performance or conduct. As a result, the dismissal was unfair, and the court ordered the respondent to reinstate Thurlow to his previous position and pay compensation for the period of unlawful termination.

Scott Thurlow v Power-Comm Electrical & Communications Pty Ltd T/A Power-Comm Electrical & Communications Pty Ltd

DECISION

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Legal Principle Established