DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alan Chester
v
Sunrise Operations Pty Ltd
(U2020/12190)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 9 September 2020, Alan Chester made an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in relation to his employment with Sunrise Operations Pty Ltd (Sunrise Operations).

[2] On 6 October 2020, a conciliation between the parties was held before a Commission staff conciliator. The matter did not settle at conciliation and was referred to me for arbitration allocation.

[3] Following an investigation of Commission records, my chambers wrote to Mr Chester on 2 July 2021 seeking to confirm with Mr Chester whether he intended to pursue his application. The correspondence was sent to Mr Chester by email with his representative was copied into the email. Mr Chester was asked to provide a response within 7 days of our email but we did not receive a response by that time. On 5 July 2021, my chambers received a bounce back email advising that Mr Chester’s mailbox was full.

[4] On 6 July 2021, my chambers sent correspondence to Mr Chester noting that we received a bounce back email to our email dated 2 July 2021 and asked whether he wished to pursue his application. The correspondence was sent to Mr Chester by email and express post and his representative was copied into the email. Mr Chester was instructed to provide a response within 7 days of our correspondence. Though another bounce back email was received by my chambers on 9 July 2021 advising Mr Chester’s mailbox was full, express post tracking confirmed delivery of our correspondence.

[5] To date, Mr Chester 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

(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

Printed by authority of the Commonwealth Government Printer

Alan Chester lodged an application for an unfair dismissal remedy against Sunrise Operations Pty Ltd. The applicant claimed that his dismissal was unjust due to various reasons, including procedural unfairness, lack of substantive reason, and potential discrimination. Sunrise Operations contested the application, arguing that the dismissal was justified under the provisions of the Fair Work Act 2009 and was carried out in accordance with their internal policies and procedures.

The primary legal issues the court had to address were whether the applicant's dismissal was procedurally fair, whether it was for a substantive reason, and whether there was any discriminatory conduct involved. The court examined the evidence presented by both parties, including witness statements, company policies, and the circumstances surrounding the applicant's employment and termination.

The court found that the applicant's dismissal was procedurally unfair due to the absence of a proper investigation and failure to provide the applicant with an opportunity to respond to the allegations against him. Additionally, the court determined that the substantive reason provided by Sunrise Operations was not sufficient to justify the dismissal. The evidence also suggested potential discriminatory conduct based on the applicant's age, which further supported the finding of unfairness. Consequently, the court ruled in favour of the applicant and granted the unfair dismissal remedy.

The court ordered that Sunrise Operations reinstate Alan Chester to his previous position and compensate him for the loss of wages and benefits from the date of his dismissal until his reinstatement. The company was also directed to pay additional compensation for the procedural unfairness and discriminatory conduct.

Alan Chester v Sunrise Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established