Corey Carnegie v M.J. Harris Group Pty Ltd - [2025] FWC 2442

[2025] FWC 2442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Corey Carnegie
v

M.J. Harris Group Pty Ltd

(U2024/15034)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 19 AUGUST 2025

Application for an unfair dismissal remedy – resignation – employee not paid and therefore dismissed – objection dismissed – dismissal unfair – remedy.

Corey Carnegie has made an application to the Commission for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act). Mr Carnegie alleges that he was unfairly dismissed from his employment as a Building Designer with the respondent, M.J. Harris Group Pty Ltd.

The respondent relied upon the Small Business Fair Dismissal Code in which it stated that it has under 15 employees; that Mr Carnegie had been employed in the business of the respondent for 12 months or more; and that it did not dismiss Mr Carnegie, but rather he resigned from his employment.

The hearing of this application was delayed, with the parties’ agreement, to facilitate attempts by the parties to settle the application, which were ultimately unsuccessful.

The respondent did not:

(a)file a Form F3 employer response to the application; or
(b)file submissions or witness statements or other material in accordance with the Commission’s directions.

On 10 June 2025, the respondent advised of its unavailability to attend the 12 June 2025 hearing. The matter was ultimately re-listed to proceed to hearing on 18 June 2025. The respondent acknowledged receipt of the revised listing details by way of an email to Chambers. Despite this, the respondent did not attend the video hearing on 18 June 2025 and did not respond to multiple attempts by Chambers to contact it by email and multiple telephone calls.

I am satisfied that the respondent was on notice of the hearing and that the Commission’s correspondence was received by its Director, Mike Harris, on its behalf. Consistent with s 600 of the Act, which allows the Commission to determine an application in the absence of a party that has been required to attend before it, the hearing proceeded as listed. Upon the conclusion of the hearing, correspondence was sent to the parties which confirmed that the decision was reserved and would be issued to the parties as soon as possible. The respondent did not provide a response to this correspondence.

This decision determines Mr Carnegie’s application for an unfair dismissal remedy based on the information before the Commission, which comprises the written material filed by Mr Carnegie, his oral evidence, and the Small Business Fair Dismissal Code completed by the respondent.

Dealing first with the initial matters for the purposes of s 396 of the Act, I am satisfied that the application was made within 21 days of the dismissal taking effect; Mr Carnegie was protected from unfair dismissal within the meaning of s 382 of the Act; and there is no contention that the dismissal arose by way of redundancy and so it was not a case of genuine redundancy.

As to the Small Business…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Corey Carnegie v M.J. Harris Group Pty Ltd

Details

AGLC: Corey Carnegie v M.J. Harris Group Pty Ltd [2025] FWC 2442
Case: [2025] FWC 2442
Decision Date: 19 AUGUST 2025

CaseChat Overview and Summary

In Corey Carnegie v M.J. Harris Group Pty Ltd, the Fair Work Commission considered an application for an unfair dismissal remedy made by Corey Carnegie against his former employer, M.J. Harris Group Pty Ltd. The primary legal issues were whether the dismissal was procedurally unfair and whether it was harsh, unjust, or unreasonable. The Court examined whether the employer complied with the Small Business Fair Dismissal Code and if the dismissal met the criteria for being considered unfair under the Fair Work Act 2009.

The Court found that the employer did not comply with the Small Business Fair Dismissal Code as it did not provide any valid reason for the dismissal or give Mr Carnegie an opportunity to respond. The employer's failure to pay Mr Carnegie's wages and superannuation led to his resignation, which the Court deemed a dismissal. The Court concluded that the dismissal was harsh, unjust, or unreasonable due to the economic and personal consequences to Mr Carnegie. Consequently, the Court found the dismissal to be unfair.

The Court awarded Mr Carnegie compensation in the amount of $3,076.92 gross, plus superannuation, which is less than the compensation cap. The Court did not order reinstatement as Mr Carnegie did not seek it and considered the working relationship to be irretrievably broken. The Court noted that this decision only addressed the unfair dismissal and did not cover any outstanding wages, termination pay, accrued leave entitlements, and superannuation entitlements that Mr Carnegie claimed were still owed by the employer.

Orders