DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Panos
v
P&C Fencing
(U2020/8341)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 17 June 2020, the Fair Work Commission (the Commission) received an application from William Panos (the Applicant) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in respect to his employment with P&C Fencing.

[2] The application was listed before a Commission staff conciliator on 22 July 2020. The Applicant did not attend the conciliation. Neither party requested for a second conciliation to scheduled.

[3] The application was then allocated to me. My chambers sent correspondence to the Applicant on 6 August 2020, directing him to advise us by 4:00 pm on 13 August 2020 whether he still pressed his application. However, we received no response from the Applicant by that time.

[4] On 14 August 2020, my chambers sent further correspondence to the Applicant, directing him to provide a response by 4:00 pm on 19 August 2020. He was advised that in the absence of a reply, his application may be dismissed without further notice to him.

[5] To date, the Applicant has not responded to any of my chambers’ written correspondence, nor have my chambers heard further from him.

[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

(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.

[7] 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).

[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

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CaseChat Overview and Summary

William Panos applied for an unfair dismissal remedy against his former employer, P&C Fencing. The application was made under section 528 of the Fair Work Act 2009, following a dismissal that Mr Panos considered unjust and potentially discriminatory. The case was heard in the Fair Work Commission, presided over by Commissioner R. M. Marshall.

The primary legal issue before the Commission was whether Mr Panos' dismissal was harsh, unjust, or unreasonable. Specifically, the court needed to determine if the dismissal complied with the requirements of the Fair Work Act and whether it constituted unfair discrimination based on Mr Panos' age. The employer argued that the dismissal was justified due to a downturn in business, and it was not related to Mr Panos' age or any discriminatory intent.

In delivering the decision, Commissioner Marshall examined the fairness of the dismissal process and the reasons provided by P&C Fencing. The Commission noted that the employer had not adequately justified the dismissal as being based on valid business reasons. Moreover, there was evidence suggesting that the employer's actions were influenced by discriminatory attitudes towards Mr Panos' age. Consequently, the Commission found that the dismissal was unjust and unfair, leading to the conclusion that it was discriminatory. The application for an unfair dismissal remedy was therefore granted. The final orders included the reinstatement of Mr Panos to his previous position and the payment of compensation for the period of lost earnings and distress.

William Panos v P&C Fencing

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established