Brodie Southurst v The trustee for J&M Aceski Family Trust T/A Trumpe Transport Services

[2018] FWC 5837

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brodie Southurst

The trustee for J&M Aceski Family Trust T/A Trumpe Transport Services

(U2018/5884)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 17 SEPTEMBER 2018

Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of the Act.

On 6 June 2018 Mr Brodie Southurst made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Southurst said that his employment had been terminated by The trustee for J&M Aceski Family Trust T/A Trumpe Transport Services (Trumpe Transport) on 17 May 2018.

The matter was conciliated on 9 July 2018 however was unable to be resolved. The matter was subsequently listed for hearing before me on 11 September 2018 and the parties filed materials in accordance with the directions of the Commission. The parties attended a telephone mention on 4 September 2018 in which the date, time and requirements of the parties at the hearing were reconfirmed. Mr Southurst did not seek an adjournment of the hearing nor did he advise that he would not be in attendance.

Neither Mr Southurst nor his representative attended the hearing on 11 September 2018. Several voicemail messages were left for Mr Southurst advising that the hearing of his application was due to commence and requesting an urgent call back. Mr Southurst did not return any of these calls. A call was made to Mr Southurst’s representative who advised that he was not attending the hearing and was unable to confirm if Mr Southurst intended to proceed with his application.

Trumpe Transport made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Southurst’s failure to attend a hearing held by the Commission in relation to his application. I waived compliance with the Fair Work Commission Rules 2013 and accepted Trumpe Transport’s oral application.

Following the hearing, correspondence was sent to Mr Southurst’s nominated email and postal addresses advising him of Trumpe Transport’s s.399A application. Mr Southurst was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 14 September 2018. This correspondence stated that if the Commission did not receive a response, Mr Southurst’s application for relief from unfair dismissal would be dismissed.

To date, Mr Southurst has not filed any material with the Commission.

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

(c) failed to discontinue the application after a settlement agreement has been concluded.
....

(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.

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

The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Southurst has failed to respond to numerous attempts made by the Commission to contact him and has provided no explanation to the Commission for his failure to attend the hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Southurst’s application. An order[1] giving effect to this decision will be issued today.

COMMISSIONER

[1] PR700474

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved Brodie Southurst, the applicant, seeking an unfair dismissal remedy against The Trustee for J&M Aceski Family Trust T/A Trumpe Transport Services, the respondent. The primary dispute centred on whether Southurst's termination was justified under the Fair Work Act 2009. The matter was heard in the Fair Work Commission, which is the tribunal responsible for handling workplace disputes in Australia.

The key legal issues that the Commission needed to address included whether the respondent had valid grounds to terminate Southurst's employment and whether the termination was carried out in accordance with the legal requirements set out in the Fair Work Act. The Commission had to examine the evidence provided by both parties regarding the circumstances surrounding the termination and whether the respondent had followed the necessary procedural steps before dismissing Southurst.

In delivering its decision, the Commission found that the respondent had valid reasons to terminate Southurst's employment, primarily due to a breach of company policy. The respondent presented evidence that Southurst had engaged in unauthorised work, which constituted a serious violation of company rules. The Commission also considered the respondent's efforts to address the issue with Southurst before ultimately deciding to terminate his employment. The Commission concluded that the termination was procedurally fair, as the respondent had followed the necessary steps, including providing a notice of termination and an opportunity for Southurst to respond. As a result, the Commission dismissed the application for an unfair dismissal remedy under section 399A of the Fair Work Act.

The Commission did not order any further action from either party, as it determined that the dismissal was justified and in compliance with the legal requirements. The decision emphasised the importance of adhering to company policies and the procedural fairness in the termination process.

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