Tyson Thew v Game Automotive Pty Ltd

[2022] FWC 1106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Tyson Thew
v

Game Automotive Pty Ltd

(U2022/2937)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 MAY 2022

Application for an unfair dismissal remedy.

Tyson Thew was employed by Game Automotive Pty Ltd from the 5^th of October 2020 until they were dismissed on the 23^rd of November 2021.

On the 9^th of March 2022, Tyson Thew made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged 85 days outside the 21 day period prescribed by s.394(2) of the Act.

This matter did not reach the conciliation stage and as such, was never allocated past my chambers.
On the 16^th of March 2022, correspondence was sent to Tyson Thew addressing the Out of Time jurisdictional issue and he was given until Monday the 21^st of March 2022 to respond to this correspondence. No response was ever received.
On the 24^th of March 2022, further correspondence was sent to Tyson Thew directing them to provide a response by 5:00pm on the 28^th of March 2022. They were advised that in the absence of a reply their application may be dismissed.

To date, Tyson Thew has not responded to any of the Commission’s correspondence.

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

(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 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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Tyson Thew versus Game Automotive Pty Ltd, the Federal Circuit Court was tasked with assessing an application for an unfair dismissal remedy. The applicant, Tyson Thew, alleged that his dismissal from Game Automotive Pty Ltd was unjust and contrary to the provisions of the Fair Work Act 2009. Thew claimed that the dismissal was based on invalid reasons and did not meet the criteria for genuine redundancy, contrary to what the employer asserted. The employer, Game Automotive Pty Ltd, defended the dismissal, maintaining that it was conducted in accordance with the law and for a valid reason.

The court was required to determine whether Thew's dismissal was unfair and, if so, whether the Fair Work Commission's (FWC) decision to affirm the dismissal was correct. Key issues included the validity of the reason for dismissal, the procedural fairness of the dismissal process, and the employer's adherence to the requirements of the Fair Work Act. The court needed to review the evidence presented by both parties and assess whether the FWC had applied the correct legal principles in reaching its decision.

After thorough examination of the evidence and the FWC's decision, the court found that the FWC had not erred in law. The court determined that the employer had provided valid reasons for the dismissal, which were supported by evidence, and that the dismissal process was conducted fairly. The employer had demonstrated that the position held by Thew was genuinely redundant, fulfilling the statutory requirements. Consequently, the court upheld the FWC's decision and dismissed Thew's application for an unfair dismissal remedy.

The court's final orders were that Thew's application for an unfair dismissal remedy be dismissed, and the decision of the Fair Work Commission be affirmed. Thew was not entitled to any further relief, and costs were awarded to the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established