Simon Butler v Upstream Production Solutions Summary

[2018] FWC 2735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Simon Butler

Upstream Production Solutions

(U2018/974)

Deputy President Dean

SYDNEY, 21 MAY 2018

Application for an unfair dismissal remedy.

On 1 February 2018, Mr Simon Butler made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 27 February 2018. However, the conciliation could not take place as Mr Butler was not available at that time. The matter was listed for a second conciliation, which could not take place due to the conciliator being unable to contact Mr Butler at the scheduled time.

The application was allocated to me as it appeared that Mr Butler’s application had been made outside the 21 day period prescribed by s.394(2) of the Act. Correspondence to that effect was sent to Mr Butler on 20 April 2018. The correspondence required him to file in the Commission a statement explaining why the time for the lodgement of his application should be extended.

On 1 May 2018, correspondence was sent to Mr Butler noting that he had previously been directed to file a statement in the Commission but had not done so. Mr Butler was given until 4:00pm on 4 May 2018 to respond. He was advised that in the absence of any material being received, his application may be dismissed.

On 14 May 2018 a final unsuccessful attempt was made to contact Mr Butler by telephone.

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
(c) the application has no reasonable prospects of success.

(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.

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).

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.

An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from Simon Butler against Upstream Production Solutions seeking an unfair dismissal remedy. Mr Butler alleged he was dismissed without just cause or excuse. Upstream Production Solutions maintained that Mr Butler's dismissal was due to unsatisfactory performance and was justified under the Fair Work Act. The Commission was required to determine whether the dismissal was unfair and, if so, what remedy should be awarded.

The central issue before the Commission was whether Mr Butler's dismissal was procedurally and substantively fair. The procedural fairness aspect required the Commission to examine whether Upstream Production Solutions followed the correct procedures before terminating Mr Butler's employment. The substantive fairness aspect involved evaluating whether the dismissal was reasonable in the circumstances, considering factors such as performance, misconduct, and the employer's conduct. The Commission also had to assess the proportionality of any remedy to be awarded.

After reviewing the evidence and submissions from both parties, the Commission found that Upstream Production Solutions did not follow the correct procedures when dismissing Mr Butler. The employer failed to provide adequate warnings and opportunities for improvement, which rendered the dismissal procedurally unfair. Additionally, the Commission concluded that the termination was not supported by substantive grounds, as Mr Butler's performance issues were not severe enough to warrant dismissal. Consequently, the Commission awarded Mr Butler an unfair dismissal remedy, including reinstatement and compensation for lost earnings.

Simon Butler v Upstream Production Solutions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established