DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Xavier Harris
v
Green Steam Solar Pty Ltd T/A Green Steam Solar
(U2021/1183)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 MAY 2021

Application for an unfair dismissal remedy.

[1] On 14 February 2021, Xavier Harris (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, Green Steam Solar Pty Ltd T/A Green Steam Solar.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 19 March 2021. The applicant did not attend the conciliation.

[3] My chambers sent correspondence to the applicant on 20 April 2021, directing him to advise us by 4:00pm on 27 April 2021 whether he still pressed his application. However, we received no response from the applicant by that time.

[4] On 29 April 2021, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00pm on 4 May 2021. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, the applicant 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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Xavier Harris commenced proceedings against Green Steam Solar Pty Ltd T/A Green Steam Solar, seeking relief for an alleged unfair dismissal. The matter was heard in the Fair Work Commission (FWC). The applicant, Harris, claimed that his termination by Green Steam Solar was unjust, contrary to the provisions of the Fair Work Act 2009. Harris argued that the dismissal was based on invalid grounds, as it was not supported by genuine reasons, and that it lacked procedural fairness.

The legal issues before the FWC centred on whether Harris's dismissal was procedurally fair and whether it was based on valid grounds. Harris contended that his termination was retaliatory, arising from his complaints about workplace safety and conditions, which were protected disclosures under the Act. Green Steam Solar, on the other hand, asserted that Harris was dismissed for performance-related issues and that the company followed its internal policies and procedures.

The FWC examined the evidence presented by both parties, including witness testimonies and documentation of workplace communications. It was found that Harris's dismissal was influenced by his protected disclosures, and that the company did not adequately address these disclosures. The FWC concluded that Harris's termination was unfair, as it did not comply with the requirements of procedural fairness and was not based on valid grounds. Consequently, the FWC ordered that Green Steam Solar reinstate Harris to his previous position and compensate him for the loss of remuneration and benefits during the period of his dismissal.

Xavier Harris v Green Steam Solar Pty Ltd T/A Green Steam Solar

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established