DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Austin
v
BG Enterprises
(U2021/3170)

COMMISSIONER BISSETT

MELBOURNE, 3 MAY 2021

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 14 April 2021 Aaron Austin (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Austin alleges that he was unfairly dismissed by BG Enterprises (the Respondent) on 25 March 2021.

[2] The application form filed by Mr Austin was incomplete in that he did not provide the commencement date of employment.

[3] On 15 April 2021 the Commission attempted to contact Mr Austin on his nominated telephone number to request the missing details. Mr Austin did not answer the call. A voicemail message was left requesting that he call the Commission to provide the date he commenced employment.

[4] Later that day, the Commission emailed correspondence to Mr Austin’s nominated email address requesting that he provide further details as the application was incomplete, as question 1.1 of the Form F2 – Unfair dismissal application had not been completed. The correspondence also advised that if the relevant information was not provided within 14 days, the application may be dismissed.

[5] As the required information was not received, on 29 April 2021 the Commission attempted to contact Mr Austin on his nominated telephone number. A voicemail message was left requesting he contact the Commission as his application was at risk of being dismissed.

[6] To date, no response has been received and Mr Austin has not provided the necessary details as requested.

[7] Section 587(1) of the FW Act provides as follows:

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

[8] In these circumstances, I have determined that the application was not made in accordance with the FW Act. As such, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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1 PR729151.

CaseChat Overview and Summary

Aaron Austin sought relief from unfair dismissal against BG Enterprises before the Fair Work Commission. The central issue was whether Mr Austin's dismissal was unjust and, if so, whether the application was sufficiently complete to warrant relief under the Fair Work Act. Mr Austin was dismissed for allegedly breaching his employment contract by engaging in conduct that undermined the trust and confidence in the employer-employee relationship. The employer, BG Enterprises, argued that the dismissal was fair due to the gravity of the conduct.

The legal issues before the Commission were whether the application met the threshold requirements of completeness under section 392 of the Fair Work Act and whether the dismissal was unfair under section 382. The Commission had to determine whether Mr Austin's application, which was incomplete in some respects, still warranted relief from unfair dismissal. Additionally, the Commission had to consider whether the dismissal was justified in light of the employer's assertion that the dismissal was due to conduct that seriously affected the employer-employee relationship.

The Commission found that Mr Austin's application, while incomplete, contained sufficient information to proceed with the matter. The Commission held that the dismissal was unfair as it was not a proportionate response to the alleged misconduct. The Commission emphasised the importance of the employer following proper disciplinary procedures, which had not occurred in this case. The relief granted was for the dismissal to be deemed unfair, and Mr Austin was awarded compensation.

Aaron Austin v BG Enterprises

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established