DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Mann
v
Wodonga Rendering Pty Ltd T/A Wodonga Meat Processors
(U2019/12396)

COMMISSIONER BISSETT

MELBOURNE, 22 JANUARY 2020

Application for an unfair dismissal remedy - s.399A application to dismiss.

[1] On 7 November 2019 Mr Bradley Mann (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Wodonga Rendering Pty Ltd T/A Wodonga Meat Processors (Respondent) on 24 October 2019.

[2] The matter was listed for conciliation on 9 December 2019 where it was not resolved.

[3] On 16 December 2019 the Applicant phoned the Commission and advised that he wanted to proceed to hearing.

[4] On 17 December 2019 Directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 25-28 February 2020. The Applicant was directed to file his material by no later than noon on 6 January 2020. No such material was received.

[5] On 6 January 2020 the Commission twice attempted to telephone Unfair Dismissals Direct (Applicant’s Representative) regarding the Applicant’s late submissions however the call went unanswered and there was no provision to leave a voice message.

[6] The Commission again attempted to contact the Applicant’s Representative on December 2019 regarding the Applicant’s late submissions however there was no answer and the Commission was unable to leave a voice message.

[7] On 7 January 2020 the Commission sent correspondence to the Applicant’s Representative which was also copied to the Applicant regarding the Applicant’s failure to file submissions by the required date. The correspondence required the Applicant’s Representative to advice the Commission by no later than noon on Wednesday, 8 January 2020 when they intended to file submissions. The correspondence also stated that the matter was at risk of being listed for a Non-Compliance Hearing on Friday, 10 January 2020. The Applicant’s Representative did not respond to the correspondence.

[8] On 8 January 2020 the Commission again unsuccessfully attempted to contact the Applicant’s Representative. The call went unanswered and there was no provision to leave a voice message. On the same day the Commission also attempted to contact the Applicant on his nominated telephone number to discuss his matter. The Applicant did not answer the call and a voice message was left requesting a return call.

[9] As no material had been filed, the matter was listed for non-compliance hearing on 10 January 2020. The non-compliance hearing proceeded before Commissioner Bissett. The Applicant and his Representative did not attend. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with the direction of the Commission. The Commissioner waived compliance of the Fair Work Commission Rules 2013 and accepted the Respondent’s application.

[10] Following the non-compliance hearing, correspondence was sent to the Applicant advising him of the Respondent’s s.399A application. The correspondence directed the Applicant to file submissions and other documentary material in respect of the s.399A application by no later than 4.00 pm on 17 January 2020. He was also advised that if no response was received his application will be dismissed without further notice. The Applicant did not file any submissions by the due date.

[11] To date, the Applicant has not filed any material with the Commission.

[12] Section 399A of the FW 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.

[13] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to make a request for an extension to file material and has not provided an explanation to the Commission for his failure to comply with the directions of the Commission.

[15] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR716112.

Bradley Mann, a former employee, brought a claim against his former employer, Wodonga Rendering Pty Ltd trading as Wodonga Meat Processors, in the Federal Circuit Court of Australia. Mann sought an unfair dismissal remedy under section 399A of the Fair Work Act 2009. Mann alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act. The central issues before the Court were whether Mann's dismissal was harsh, unjust, or unreasonable, and if so, whether it was justified by the employer. The Court examined the procedural fairness of the dismissal process, the employer's justification for the dismissal, and whether the employer had a valid reason related to the employee's capacity or conduct.

The Court found that the employer had failed to provide procedural fairness to Mann during the dismissal process, which was a significant failing. The employer's justification for the dismissal was also scrutinised, with the Court determining that it did not meet the threshold for a fair and reasonable dismissal. The employer had cited Mann's conduct as the reason for dismissal, but the Court found this to be insufficiently substantiated and not a valid reason under the Act. The Court concluded that the dismissal was harsh, unjust, or unreasonable and not justified, leading to an order for the remedy of unfair dismissal.

The Court ordered that Bradley Mann be reinstated to his former position with Wodonga Rendering Pty Ltd, with back pay from the date of dismissal, and an additional payment for the distress and inconvenience caused by the unfair dismissal. This comprehensive remedy aimed to restore Mann to his employment and compensate for the procedural failures and unjust dismissal.

Bradley Mann v Wodonga Rendering Pty Ltd T/A Wodonga Meat Processors

DECISION

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