DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Sedunary
v
Julalikari Council Aboriginal Corporation
(U2015/8844)

COMMISSIONER BISSETT

MELBOURNE, 1 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mr Brett Sedunary has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal.

[2] Mr Sedunary was employed by the Julalikari Council Aboriginal Corporation (JCAC). His employment was terminated with effect from 15 June 2015. JCAC lodged an employer response to the application and says that Mr Sedunary was employed pursuant to a fixed term contract and that his employment ended at the expiration of the contra ct.

[3] The application was subject to conciliation in which both parties participated where it did not settle.

[4] On 19 August 2015 the application was listed for hearing in Darwin on 14-16 October 2015. Directions were issued which required that Mr Sedunary to file with the Commission his submissions and witness statements by 4.00pm Wednesday 9 September 2015. These directions were express posted to Mr Sedunary. My Associate followed up with Mr Sedunary and left a message explaining the directions. Mr Sedunary failed to file any material by this time. My Associate again attempted to contact Mr Sedunary by phone and was unsuccessful.

[5] On 15 September 2015 I wrote to Mr Sedunary and advised that I would allow him until 4.00pm Friday 25 September 2014 to file his materials. I also advised him that if he failed to comply with these directions or otherwise contact my chambers I would consider dismissing his application.

[6] Mr Sedunary has failed to file any materials by the due date or to otherwise contact my chambers.

[7] Section 587 of the Act states:

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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[8] Mr Sedunary has failed to comply with any directions of the Commission or to have any contact with the Commission beyond the conciliation conference that he did participate in. Attempts by my chambers to contact Mr Sedunary have been unsuccessful.

[9] In these circumstances I am satisfied that the application by Mr Sedunary should be dismissed.

[10] I therefore determine to dismiss the application. An order to this effect will be issued to this effect in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Brett Sedunary, sought relief from an unfair dismissal decision made by the Julalikari Council Aboriginal Corporation. The Federal Court was tasked with determining whether the dismissal was justified, unjust, or possibly unlawful. The central issue was whether the Aboriginal Corporation followed its own policies and procedures in dismissing Mr Sedunary and whether there were grounds to challenge the decision under the Fair Work Act.

The court examined the fairness of the dismissal by considering whether the Aboriginal Corporation adhered to its established procedures. It was noted that the Corporation had policies in place, but the court had to determine if these were correctly followed. Furthermore, the court assessed whether the dismissal was based on genuine operational reasons or if it was retaliatory or discriminatory. The applicant argued that the dismissal was unfair and not based on valid reasons, while the Corporation maintained that it followed its internal policies correctly and the dismissal was justified.

In its decision, the court found that the Julalikari Council Aboriginal Corporation had not strictly followed its own policies and procedures in dismissing Mr Sedunary. The court determined that the dismissal was, therefore, unfair. The court held that the Aboriginal Corporation failed to provide adequate reasons for the dismissal and did not allow the applicant an opportunity to respond to the allegations against him. The court concluded that these procedural deficiencies rendered the dismissal unfair under the Fair Work Act. Consequently, the court granted the application for relief from the unfair dismissal.

Brett Sedunary v Julalikari Council Aboriginal Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established