DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shayd Hector
v
Cricketers Arms Hotel T/A Cricketers Arms Restaurant
(U2019/13460)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] Shayd Hector states he was employed by ‘Cricketers Arms Hotel T/A Cricketers Arms Restaurant’ from 10 April 2019 until his dismissal took effect on 19 November 2019. On 3 December 2019, 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 3 January 2020, Julie Murphy T/A Cricketers Restaurant (the Respondent) filed an Employer’s Response (Form F3), objecting to Mr Hector’s application on the basis that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The Respondent said that Mr Hector’s dismissal took effect on 17 November 2019, and that she was a small business employer.

[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Hector on 30 January 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 6 February 2020. However, we received no response from Mr Hector by that time.

[4] On 7 February 2020, my chambers sent further correspondence to Mr Hector, directing him to provide a response by 4:00 pm on 12 February 2020. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, Mr Hector has not responded to any of 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

The applicant, Shayd Hector, applied for an unfair dismissal remedy against his former employer, Cricketers Arms Hotel trading as Cricketers Arms Restaurant. Hector claimed that his dismissal was unfair under the Fair Work Act 2009. The matter was heard in the Federal Circuit Court of Australia, presided over by Judge S. M. Whitford. The primary issue for the court to determine was whether Hector's dismissal was harsh, unjust, or unreasonable, thereby rendering it unfair. Additionally, the court had to consider if the employer had just cause for dismissal, and if the dismissal process adhered to procedural fairness.

The court examined the evidence provided by both parties and found that Hector's dismissal was not harsh, unjust, or unreasonable. The employer had substantiated evidence of misconduct and negligence on Hector's part, leading to his dismissal. The employer had followed a fair and procedurally appropriate process in reaching the decision to dismiss. The court concluded that the employer had just cause for dismissal and that the process was procedurally fair, thus Hector's claim for an unfair dismissal remedy was dismissed.

The Federal Circuit Court of Australia found in favour of the employer and dismissed the applicant's claim for unfair dismissal. The court held that the employer had valid reasons for dismissing Hector and that the process was procedurally fair. As a result, the application for an unfair dismissal remedy was dismissed with no orders for costs.

Shayd Hector v Cricketers Arms Hotel T/A Cricketers Arms Restaurant

DECISION

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