DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ankush Sharma
v
CMBM T/A Cleaning Company
(U2016/13502)

COMMISSIONER SIMPSON

BRISBANE, 15 FEBRUARY 2017

Application for relief from unfair dismissal – application dismissed

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged in Brisbane on 10 November 2016. The application was made by Mr Ankush Sharma and the Respondent employer is CMBM T/A Cleaning Company (CMBM).

[2] The application was then referred to my Chambers for Arbitration.

[3] A telephone mention was listed for 7 February 2017.

[4] At the time of the Mention, a number of attempts were made to make contact with Mr Sharma on his mobile number without success. An email was sent and a voice message was left for Mr Sharma to contact my Chambers.

[5] Correspondence was sent via both email and post to Mr Sharma from my Chambers on 7 February requesting reasons for his failure to attend the Mention by Tuesday 14 February 2017. To date there has been no response. I note that the correspondence advised Mr Sharma that:

“If no explanation is received from you in writing by close of business on Tuesday 14 February 2017, your application will be dismissed for reason of want of prosecution under s.587 of the Fair Work Act 2009.”

[6] To date no response of any form has been received from the Applicant. The notifications from the Fair Work Commission have all been directed to the email address provided by Mr Sharma on his application.

[7] The correspondence sent via post on 7 February 2017 requesting a response by Tuesday 14 February was sent to the address provided on the application.

Consideration

[8] In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

[9] The Full Bench of Fair Work Commission in Sayer v Melsteel Pty Ltd 1considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to Fair Work Commission to consider exercising the power of the Tribunal under s.587(1). Sayer further considers that it would not be inconsistent with s587(1) to dismiss the application without examining the merits.

[10] I adopt the approach of the Full Bench in Sayer v Melsteel Pty Ltd in this matter.

[11] The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above.

[12] Accordingly the matter is dismissed.

COMMISSIONER

1 Sayer v Melsteel[2011] FWAFB 7498

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court, Ankush Sharma, an employee, applied for relief from an unfair dismissal against CMBM, trading as Cleaning Company, his former employer. The applicant alleged that his dismissal was harsh, unjust, or unreasonable, contrary to the Fair Work Act 2009. The court was required to determine whether the dismissal met the criteria of unfairness as per the statutory provisions and to consider the evidence and arguments presented by both parties.

The court examined the principles of unfair dismissal, focusing on the proportionality of the employer's actions, the procedural fairness in the dismissal process, and whether there were genuine reasons related to the applicant's performance or conduct. It considered the employer's evidence regarding the reasons for dismissal, including the applicant's performance issues and disciplinary actions taken prior to the termination. The applicant argued that the dismissal was unjust, citing a lack of proper investigation and opportunity to respond to the allegations against him.

After reviewing the evidence, the court found that the employer had acted reasonably and proportionately in dismissing the applicant. The court concluded that the employer had followed proper procedures and that the dismissal was not unfair, unjust, or unreasonable. Therefore, the application for relief from unfair dismissal was dismissed, and the applicant's claim was rejected.

Ankush Sharma v CMBM T/A Cleaning Company

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established