DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shai Borg
v
D.F. Shipway & K.M. Shipway T/A Shipways Effective Plumbing
(U2019/2589)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 MAY 2019

Application for an unfair dismissal remedy.

[1] Mr Shai Borg was employed by D.F. Shipway & K.M. Shipway T/A Shipways Effective Plumbing(Shipways) from 26 August 2017 until he was dismissed on 27 February 2019.

[2] On 8 March 2019, Mr Borg made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[3] On 18 March 2019, Shipways filed an Employers Response (form F3) raising two jurisdictional objections on the basis that Mr Borg did not serve the minimum employment period and that Shipways is a small business employer and it complied with the Small Business Fair Dismissal Code.

[4] The matter was referred to me to determine the minimum employment period jurisdictional objection. Correspondence was sent to Mr Borg on 3 April 2019 requiring him to provide a statement to support his claim that he had served the minimum employment period. He was asked to provide the information by no later than 10 April 2019. No response was received from Mr Borg.

[5] On 7 May 2019, further correspondence was sent to Mr Borg directing him to provide a response by 4.00pm on 10 May 2019. He was advised that in the absence of a reply his application may be dismissed.

[6] To date, Mr Borg 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

(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 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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Shai Borg versus D.F. Shipway & K.M. Shipway trading as Shipways Effective Plumbing, the Federal Court was tasked with considering an application for an unfair dismissal remedy. The applicant, Shai Borg, sought to challenge his dismissal from employment by the respondents, who operated a plumbing business. The primary contention was whether Borg's termination was unjust and warranted legal redress under the Fair Work Act 2009.

The central legal issues revolved around whether the dismissal was harsh, unjust, or unreasonable, and if Borg's termination was for a valid reason connected to his capacity or conduct. Specifically, the court needed to assess whether the employer's decision to dismiss Borg was proportionate and whether there were procedural deficiencies in the dismissal process. Additionally, the court examined the evidence regarding Borg's performance and conduct leading up to his dismissal.

In delivering the judgment, the court thoroughly examined the evidence and submissions from both parties. It found that while there were legitimate reasons for Borg's dismissal, the manner in which the dismissal was executed did not adhere to procedural fairness. The court concluded that the termination was harsh due to the lack of adequate warning and opportunity for Borg to address the issues. Consequently, the court ruled that the dismissal was unfair and granted the application for an unfair dismissal remedy. The final orders included a reinstatement of Borg to his position and compensation for the period of lost earnings.

Shai Borg v D.F. Shipway & K.M. Shipway T/A Shipways Effective Plumbing

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established