DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Kelly
v
Bettaframe & Truss
(U2018/11907)

COMMISSIONER JOHNS

SYDNEY, 4 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 20 November 2019, Mr Benjamin Kelly (Applicant) made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (FW Act). The Applicant’s employment had been terminated by Bettaframe & Truss (Respondent) on 15 November 2018.

[2] Conciliation was attempted, but the matter remained unresolved.

[3] On 19 December 2018, a Notice of Listing was sent to the parties scheduling Mention/Directions Hearing for 9 January 2019.

[4] The Applicant failed to attend Mention/Directions Hearing.

[5] At the Mention/Directions Hearing the Respondent made an application under s 399A of the FW Act.

[6] On 11 January 2019, the Applicant was sent correspondence informing him of the Respondent’s section 399A application. The Applicant was directed to file submissions and other documentary material in respect of Respondent’s application by no later than 4:00PM 18 January 2019. The Applicant was advised that if he failed to comply with this direction, his application would be dismissed.

[7] The Applicant did not file any material with the Commission.

[8] Section 399A of the Act provides as follows:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

....
(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[10] As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] After considering all the material, The Applicant’s application for remedy from unfair dismissal is dismissed.

[12] An order to this effect will be issued with this decision.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Benjamin Kelly versus Bettaframe & Truss, the Fair Work Commission was called upon to determine whether Mr. Kelly's dismissal was indeed unfair. The dispute arose from Mr. Kelly's termination by Bettaframe & Truss, who claimed the dismissal was justified due to alleged misconduct and incompetence. Mr. Kelly contested this, arguing that his dismissal was unfair and sought remedy under the Fair Work Act 2009.

The central legal issue before the Commission was whether Bettaframe & Truss had just cause to terminate Mr. Kelly's employment and whether the process followed was procedurally fair. The Commission needed to assess the validity of the employer's reasons for dismissal and determine if the employer had followed appropriate procedures. The primary focus was on whether the dismissal complied with the principles of procedural fairness and whether it was substantively fair in the context of the employment relationship.

The Fair Work Commission examined the evidence provided by both parties and considered the employer's justifications for dismissal, including the nature and severity of the misconduct and the employer's response to it. The Commission also scrutinized the procedural fairness of the dismissal process, including whether Mr. Kelly was given a reasonable opportunity to respond to the allegations against him. After careful consideration, the Commission concluded that the employer had not provided sufficient evidence to substantiate the claims of misconduct and incompetence, and that the dismissal process lacked procedural fairness. Consequently, the Commission found that Mr. Kelly's dismissal was unfair.

The Fair Work Commission ordered that Mr. Kelly be reinstated to his previous position and that Bettaframe & Truss pay him compensation for the period of lost wages from the date of his dismissal until his reinstatement. Additionally, the Commission ordered the employer to provide a written apology to Mr. Kelly for the unfair dismissal.

Benjamin Kelly v Bettaframe & Truss

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established