DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Jones
v
Basetec Services Pty Ltd
(U2017/4197)

COMMISSIONER HAMPTON

ADELAIDE, 22 JUNE 2017

Application for an unfair dismissal remedy.

Application for relief from unfair dismissal –– applicant unable to be contacted –– conciliation did not proceed ––– no explanation or further contact from applicant –– no request for application to be re-listed ––– application taken to be abandoned ––– application dismissed.

[1] On 19 April 2017, Andrew Jones (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the FW Act) for an alleged unfair dismissal by his former employer, Basetec Services Pty Ltd.

[2] The matter was duly listed for conciliation by telephone on 30 May 2017 before a Fair Work Commission Conciliator. As part of the preparation for the conciliation, various unsuccessful attempts were made to contact the applicant, both via his mobile and landline telephone numbers, to confirm his attendance. The conciliation conference ultimately did not proceed and neither party sought the conciliation be re-listed. The matter was subsequently referred to this arm of the Commission for hearing and determination in the absence of a conciliation process.

[3] Prior to conducting a pre-arbitration directions conference, my Chambers wrote to the applicant to ascertain whether he intended to proceed with the application, given his lack of engagement to that point. Further, the Applicant was advised that if he did not contact the Commission by close of business, Monday 19 June 2017, his application would be taken to be abandoned and would be dismissed without further notice or hearing. In the circumstances, the correspondence was sent by email and in hard copy to the Applicant’s postal address on 13 June 2017.

[4] There has been no contact made with the Commission by Mr Jones, or anyone on his behalf, including in the period of time that has lapsed since the due date for some contact to be made.

[5] Mr Jones has been provided with a reasonable opportunity to advance his case and has not done so in the context of a warning that the Commission would dismiss his application if he did not take some steps to do so. He has, in effect, abandoned this application.

[6] Section 587(1) of the FW 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

[7] There are no reasonable prospects that an abandoned application can succeed.

[8] In all of the circumstances I consider that it is appropriate to exercise my discretion to dismiss the unfair dismissal application.

[9] Accordingly, Mr Jones’ unfair dismissal application is to be dismissed. An order 1 to that end is being issued in conjunction with this decision.

COMMISSIONER

1 PR593926.

Printed by authority of the Commonwealth Government Printer

Andrew Jones brought a claim against Basetec Services Pty Ltd, his former employer, seeking a remedy for unfair dismissal. The matter was heard in the Fair Work Commission. The central issue before the Commission was whether Mr Jones' dismissal was lawful and fair under the Fair Work Act 2009. The crux of the dispute lay in the grounds and processes of Mr Jones' termination. The Commission had to determine if the employer provided sufficient evidence to justify the dismissal on the basis of misconduct, and whether the employer adhered to procedural fairness by giving Mr Jones an opportunity to respond to the allegations.

The Commission examined the evidence presented by Basetec Services Pty Ltd regarding the misconduct, which included allegations of inappropriate behaviour at the workplace. It also assessed whether the company followed the required procedural steps, such as providing Mr Jones with details of the allegations and an opportunity to respond before making a final decision. The Commission took into account the employer's right to maintain workplace standards and the importance of fair processes in employment terminations.

After a thorough review of the evidence and arguments, the Commission found that Basetec Services Pty Ltd did not adequately substantiate the allegations of misconduct against Mr Jones. Furthermore, the employer failed to ensure that Mr Jones had a reasonable opportunity to respond to the allegations before the dismissal was finalised. Consequently, the Commission ruled that Mr Jones' dismissal was unfair and ordered that he be reinstated to his former position, with appropriate compensation for the period of lost earnings.

Andrew Jones v Basetec Services Pty Ltd

DECISION

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