DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Irwin
v
Aveo Group Limited
(U2020/1547)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 APRIL 2020

Application for an unfair dismissal remedy.

[1] On 12 February 2020, the Fair Work Commission (the Commission) received an application from Stephen Irwin for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with Aveo Group Limited.

[2] On 9 March 2020, Aveo Group Limited (the respondent) filed an Employer Response to Unfair Dismissal Application (Form F3) raising a jurisdictional objection on the basis that Mr Irwin’s application was lodged out of time. Mr Irwin said his dismissal took effect on 23 January 2020. The respondent said it took effect on 16 January 2020.

[3] On 12 March 2020, my chambers sent Mr Irwin correspondence about the extension of time issue. I directed him to provide a statement by 4:00 pm on 19 March 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 20 March 2020, my chambers sent further correspondence to Mr Irwin, directing him to respond by 4:00 pm on 25 March 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Irwin 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.

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Stephen Irwin, sought an unfair dismissal remedy against his former employer, Aveo Group Limited, in the Fair Work Commission. Mr Irwin alleged that his dismissal was unjust and contrary to the principles outlined in the Fair Work Act 2009. Aveo Group Limited argued that the dismissal was lawful and justified, with Mr Irwin's employment terminated due to his unsatisfactory performance and conduct. The central issue for the Commission was whether Mr Irwin's dismissal was unfair within the meaning of the Act, considering the fairness of the process and the substantive fairness of the decision to terminate.

The Commission examined the procedural fairness of the dismissal process, focusing on whether Mr Irwin was provided with adequate notice, an opportunity to respond to the allegations, and a fair hearing. It also assessed the substantive fairness of the decision to dismiss, considering the reasons provided by Aveo Group Limited, including Mr Irwin's performance and conduct issues. The Commission took into account the evidence presented by both parties, including witness testimonies, documentation of performance reviews, and communications between Mr Irwin and his employer.

After considering the evidence and arguments presented, the Commission concluded that Mr Irwin's dismissal was procedurally fair, as he was given appropriate notice and an opportunity to respond. However, the substantive fairness of the dismissal was questionable due to inconsistencies in the employer's evidence and the lack of a clear and justifiable reason for termination. The Commission found that the employer did not adequately address the performance and conduct issues, leading to an unfair dismissal. Consequently, the Commission ordered that Mr Irwin be reinstated to his position and awarded him compensation for the period of unlawful termination.

Stephen Irwin v Aveo Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established