DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tapiwa Shumba
v
Lovells Springs Pty Ltd
(U2020/718)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 APRIL 2020

Application for an unfair dismissal remedy.

[1] On 22 January 2020, the Fair Work Commission (the Commission) received an application from Tapiwa Shumba for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with Lovells Springs Pty Ltd (the respondent).

[2] On 30 January 2020, the respondent filed an Employer Response to Unfair Dismissal Application (Form F3), raising a jurisdictional objection on the basis that Mr Shumba’s application was lodged out of time. Mr Shumba said his dismissal took effect on 6 January 2020. The respondent said it advised Mr Shumba of a lack of available work on 24 December 2019.

[3] Mr Shumba did not attend the conciliation that was listed for 2 March 2020 before a Commission staff conciliator.

[4] On 10 March 2020, my chambers sent Mr Shumba correspondence asking him to confirm that he wished to press his application. Mr Shumba emailed my chambers on 16 March 2020 confirming that he was still interested in proceeding.

[5] On 20 March 2020, my chambers sent Mr Shumba correspondence about the extension of time issue. I directed him to provide a statement by 4:00 pm on 27 March 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[6] On 20 April 2020, my chambers sent further correspondence to Mr Shumba, directing him to respond by 4:00 pm on 23 April 2020, and advising that if he did not respond, his application may be dismissed.

[7] To date, Mr Shumba has not responded to the Commission’s correspondence of either 20 March 2020 or 20 April 2020.

[8] 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.”

[9] 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).

[10] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Tapiwa Shumba applied for unfair dismissal remedy against his former employer, Lovells Springs Pty Ltd, in the Fair Work Commission. Shumba contended that his dismissal was unjust, lacking procedural fairness, and that the employer's reasons for dismissal were not valid. The employer argued that the dismissal was fair and based on legitimate grounds, including Shumba's failure to comply with a final warning and his absence from work without justification. The Commission had to determine whether the employer complied with procedural fairness requirements and if the dismissal was justified.

The central issues revolved around whether the employer followed proper procedures in dismissing Shumba and whether the dismissal was valid based on the employer's stated reasons. The Commission examined the employer's adherence to its own policies and procedures and whether these were applied consistently and fairly. It also considered whether the employer's reasons for dismissal were substantively valid, specifically if Shumba's actions warranted a final warning and subsequent dismissal.

The Fair Work Commission concluded that the employer did not adhere to procedural fairness in dismissing Shumba. It found that the employer failed to give Shumba an adequate opportunity to respond to the allegations against him, particularly regarding the final warning. The Commission determined that the employer's reasons for dismissal were not substantiated, as the evidence did not convincingly support the employer's claims. Consequently, the Commission ruled that Shumba's dismissal was unfair and ordered the employer to reinstate him to his previous position and compensate him for lost earnings.

The Commission's final orders included reinstatement of Shumba to his former position and the payment of lost earnings from the date of dismissal until his reinstatement. The employer was also required to pay costs associated with the application.

Tapiwa Shumba v Lovells Springs Pty Ltd

DECISION

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