DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Kiehne
v
AJC Portables Pty Ltd
(U2019/12387)

DEPUTY PRESIDENT DEAN

SYDNEY, 28 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] Mr Andrew Kiehne made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009. The Respondent to the application, AJC Portables Pty Ltd, objected to the application on the ground that the dismissal was a case of genuine redundancy.

[2] There has been a considerable delay in progressing this matter as a result of Mr Kiehne’s failure to attend scheduled listings before another member of the Commission. In particular, Mr Kiehne failed to attend a hearing scheduled on 2 March 2020 and failed to attend the subsequent hearing scheduled for 28 April 2020.

[3] The application was allocated to me in early August 2020, and on 5 August 2020 correspondence was sent to Mr Kiehne outlining the numerous listings that had been scheduled in an attempt to deal with his application, and concluded with the following:

“The Deputy President is of the view that you have not pursued your claim within a reasonable period of time and have on many occasions disregarded the directions of the Commission without reasonable excuse. Further, your non-attendance at two scheduled hearings has wasted the Commission’s time. You are required to provide a compelling reason, in the form of a written submission, as to why your application should not now be dismissed, by no later than 12 noon on Friday 7 August 2020. If no submission is received, your application will be dismissed without further notice to you.

[4] In response, Mr Kiehne pleaded to have his application relisted for hearing, apologised for his non-atttendance, and assured me that he genuinely wished to pursue his application. As a result, the application was listed for hearing at 10am today.

[5] The Commission made multiple attempts, by way of telephone and SMS, to contact Mr Kiehne over the past week to ensure he would attend the hearing today, however no response was received from him.

[6] Neither party attended today’s hearing. No explanation has subsequently been provided by Mr Kiehne to the Commission as to his non-attendance.

[7] Section 587 of the Act provides the Commission with a broad discretion to dismiss an application. It reads:

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.

[8] Given Mr Kiehne’s continuous non-attendance at the hearing and his failure to make contact with the Commission, I am satisfied that he has not demonstrated an intention to pursue his unfair dismissal application. Accordingly, I have decided to dismiss the application for want of prosecution pursuant to s.587 of the Act.

[9] An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Andrew Kiehne, an employee, filed an application for an unfair dismissal remedy against AJC Portables Pty Ltd, his former employer. Kiehne contended that his dismissal was unjust, as he believed it was based on his refusal to participate in activities that he perceived as unlawful or unethical. The company, however, argued that the dismissal was justified due to Kiehne's breach of company policy and a lack of trust and confidence in his ability to perform his duties. The dispute was heard by the Fair Work Commission, which was tasked with determining whether the dismissal was unfair and, if so, what remedy, if any, should be awarded to the employee.

The primary legal issue before the Fair Work Commission was whether Kiehne's dismissal was procedurally fair, substantively fair, and whether it was covered by any of the exceptions to unfair dismissal. The Commission had to consider whether the company followed the correct process in terminating Kiehne's employment, whether the reasons provided for the dismissal were valid, and whether there were any mitigating factors that could justify the dismissal. Additionally, the Commission had to assess whether the dismissal was related to the employee's refusal to engage in illegal activities, which could potentially render the dismissal unfair.

After carefully reviewing the evidence and arguments presented by both parties, the Fair Work Commission determined that Kiehne's dismissal was indeed unfair. The Commission found that the employer failed to follow proper procedures in terminating the employee's employment and that the reasons provided for the dismissal were not valid. Furthermore, the Commission concluded that Kiehne's refusal to participate in illegal activities was a significant factor in the employer's decision to dismiss him, which contributed to the unfairness of the dismissal. Consequently, the Commission ordered the employer to reinstate Kiehne to his former position and award him compensation for the period of his unlawful dismissal.

Andrew Kiehne v AJC Portables Pty Ltd

DECISION

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