DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brenton O’Brien
v
CPB Contractors T/A CPB
(U2020/16225)

COMMISSIONER BISSETT

MELBOURNE, 28 JANUARY 2021

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 20 December 2020 Mr Brenton O'Brien made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by Mr O'Brien was incomplete in that he did not provide the commencement date of employment.

[3] On 21 December 2020 the Commission emailed correspondence to Mr O'Brien’s nominated email address requesting that he provide further details as the application was incomplete as he did not provide the commencement date of his employment. That correspondence also advised that if the commencement date of employment was not provided within 14 days the application may be dismissed.

[4] As the required information was not received, on 13 January 2021 the Commission attempted to contact Mr O'Brien on his nominated telephone number. A voicemail message was left requesting Mr O’Brien contact the Commission regarding his incomplete application.

[5] Later that day, the Commission emailed correspondence to Mr O’Brien’s nominated email address requesting he contact the Commission urgently regarding his incomplete application.

[6] On 15 January 2021 the Commission again attempted unsuccessfully to contact Mr O’Brien his nominated telephone number.

[7] On 18 January 2021 the Commission again attempted to contact Mr O’Brien on his nominated telephone number. The Commission was unable to reach Mr O’Brien and the call was disconnected.

[8] To date, no response has been received and Mr O'Brien has not provided the necessary details as requested.

[9] Section 587(1) of the FW Act provides as follows:

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

[10] In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[11] As such, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case of Brenton O'Brien against CPB Contractors T/A CPB was heard in the Fair Work Commission. Brenton O'Brien applied for relief from his dismissal on the basis of unfairness, but his application was incomplete. CPB Contractors subsequently applied for the dismissal to be made pursuant to section 587 of the Fair Work Act, which allows the Commission to initiate the dismissal if the application is not completed. The central dispute centred around whether the incomplete application could still be considered by the Commission and, if not, whether the dismissal could proceed under the Commission's own initiative.

The primary legal issue for the Commission was whether O'Brien's incomplete application should still be entertained or if the dismissal could be processed under section 587. This involved assessing whether O'Brien's application was sufficiently complete to warrant consideration, and if not, whether the procedural requirement of a complete application excused CPB Contractors from having to address the merits of the unfair dismissal claim. The Commission needed to determine whether the procedural rule about incomplete applications could be applied in a way that would allow the dismissal to proceed without further input from O'Brien.

The Fair Work Commission determined that O'Brien's application was indeed incomplete and did not meet the requirements for consideration. The Commission found that, given the procedural shortcomings, it was appropriate to proceed with the dismissal under section 587. The Commission reasoned that the procedural rule regarding incomplete applications was a necessary safeguard to ensure that the process was not unduly prolonged by parties who did not follow the required steps. As a result, the dismissal was made at the Commission's initiative, and O'Brien's application for relief from dismissal was dismissed.

The Commission ordered that the dismissal of Brenton O'Brien by CPB Contractors T/A CPB be upheld, effective from the date of the decision. The order also noted that O'Brien's application for relief from dismissal was dismissed due to its incompleteness. This decision underscored the importance of procedural compliance in applications to the Fair Work Commission, particularly in cases involving dismissals.

Brenton O'Brien v CPB Contractors T/A CPB

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established