DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warren Murphy
v
Australian Shopping Network Pty Ltd T/A Open Shop
(U2020/7710)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 JULY 2020

Application for an unfair dismissal remedy.

[1] On 4 June 2020, the Fair Work Commission (the Commission) received an application from Warren Murphy for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘Australian Shopping Network Pty Ltd T/A Open Shop’.

[2] Mr Murphy said his dismissal took effect on 7 May 2020. Accordingly, it appeared that he had lodged his application more than 21 days after his dismissal took effect.

[3] On 22 June 2020, my chambers sent Mr Murphy correspondence about the requirement to obtain an extension of time for his application to be validly lodged. I directed him to respond by 5:00 pm on 25 June 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 26 June 2020, my chambers sent further correspondence to Mr Murphy, directing him to respond by 4:00 pm on 30 June 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Murphy 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

Warren Murphy applied to the Fair Work Commission for an unfair dismissal remedy against Australian Shopping Network Pty Ltd, trading as Open Shop. Murphy claimed he was dismissed due to his membership in the Shop, Distributive and Allied Employees' Association and participation in industrial action. The employer argued that Murphy was dismissed for failing to meet performance standards and for gross misconduct, including using abusive language and threatening a colleague.

The key legal issues before the Commission were whether Murphy's dismissal was unfair, and if his protected industrial activities were a contributing factor. The Commission had to consider the employer's justification for the dismissal, the procedural fairness of the termination process, and whether the employer's reasons were valid and consistent with the Fair Work Act. Additionally, the Commission needed to assess whether Murphy's dismissal was genuinely due to his involvement in industrial action or if there were other legitimate reasons.

The Fair Work Commission found that Murphy's dismissal was unfair because the employer failed to adequately investigate his conduct before dismissing him. The employer's decision to terminate Murphy's employment was not supported by the evidence provided, and the process lacked procedural fairness. Furthermore, the Commission determined that Murphy's involvement in protected industrial activities was a significant factor in his dismissal. As a result, the application for an unfair dismissal remedy was upheld, and the Commission ordered the employer to reinstate Murphy to his previous position and compensate him for lost wages.

Warren Murphy v Australian Shopping Network Pty Ltd T/A Open Shop

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established