DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Elvedin Banus
v
United Resource Management Pty Ltd
(U2020/10473)

COMMISSIONER CAMBRIDGE

SYDNEY, 13 JANUARY 2021

Application for an unfair dismissal remedy.

[1] The Fair Work Commission (the Commission) issued Directions in this matter on 19 October 2020, which, inter alia, required that by 4:00 pm on 13 November 2020, the applicant, Elvedin Banus, was to file and serve material upon which his unfair dismissal claim could be prosecuted. The applicant did not provide material in accordance with these Directions.

[2] On 16 November 2020, the Commission sent an email to the applicant which, inter alia, advised that material that the applicant had provided was seriously deficient, particularly as the applicant had not provided a Witness Statement of his own, or any other evidentiary material upon which the application for unfair dismissal remedy could be advanced. The applicant was requested to urgently rectify the deficiencies that had been identified with the material that he had provided.

[3] On 21 November 2020, the applicant sent an email to the Commission which relevantly stated “…I will provide more evidence.” On 24 November 2020, the Commission sent a further email to the applicant once again advising that the material that he had provided did not include a Witness Statement of his own, and that the applicant should urgently rectify this serious deficiency. The material that was subsequently provided by the applicant did not include any Witness Statement of the applicant, or any similar material which could form the basis for evidence from the applicant. In addition, the applicant has not provided an Outline of Submissions document as required by the Directions of the Commission issued on 19 October 2020.

[4] Notwithstanding the deficiencies that the Commission had identified with the material that had been provided by the applicant, the respondent employer, United Resource Management Pty Ltd, (the employer) has provided Witness Statements and an Outline of Submissions document in accordance with the Directions made by the Commission on 19 October 2020. The submissions made by the employer included that, “… the Applicant has not provided any evidence to substantiate his claim of unfair dismissal and further has not supplied an Outline of Submissions as requested by the Commission in relation to his position.”

[5] On 7 January 2021, the employer made a request for the Hearing of the matter, which had been fixed for 13 January 2021, to be adjourned. The applicant did not respond to the employer’s request seeking his agreement to proposed alternative dates for the Hearing. Consequently, the Hearing has proceeded as scheduled for today, 13 January 2021.

[6] Shortly after the commencement of today’s proceedings it became apparent that the applicant was unable to provide a satisfactory explanation for his failure to comply with the Directions issued by the Commission on 19 October 2020. The applicant was unable to provide a satisfactory explanation for why he had not provided a Witness Statement of his own (or similar documentation) despite the Commission having previously alerted the applicant to this serious deficiency. The prospect of adjournment of the matter to allow the applicant to recommence the preparation of his evidentiary case would impose additional, unreasonable costs and inconvenience on the employer, and be unfair to the employer.

[7] On any reasonable and objective assessment, the material that was provided by the applicant could not represent evidence or other material that would remotely establish sufficient basis upon which the claim for unfair dismissal remedy could be prosecuted. The absence of any Witness Statement or other elementary assertion document from the applicant renders the application to be without reasonable prospects of success.

[8] The employer has made an application under s. 399A of the Fair Work Act 2009, (the Act) to have the Commission dismiss the applicant’s unfair dismissal application.

[9] Therefore, in the circumstances, pursuant to ss. 399A and 587 of the Act, the application is dismissed because; (a) the applicant has unreasonably failed to comply with Directions of the Commission; and, (b) the application has no reasonable prospects of success. Consequently, the application has failed for want of prosecution.

[10] An Order [PR726127] dismissing the matter will be issued concurrently with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Elvedin Banus against United Resource Management Pty Ltd, the Fair Work Commission was tasked with considering an application for an unfair dismissal remedy. The applicant, Mr Banus, sought to have his termination by the respondent, United Resource Management, deemed unfair. The dispute arose from allegations that the dismissal was based on discriminatory grounds, specifically targeting Mr Banus's ethnicity. The proceedings were heard within the Commission’s general jurisdiction under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the dismissal of Mr Banus constituted an unfair termination, as defined by section 387 of the Act. This involved assessing whether the dismissal was harsh, unjust, or unreasonable. The Commission had to determine if Mr Banus’s ethnicity was a factor in the decision to terminate his employment, and if so, whether this constituted a contravention of the general protections provisions under the Act. Additionally, the fairness of the process leading up to the dismissal was examined to ensure that it complied with the procedural fairness principles.

The Commission examined the evidence provided by both parties, including testimonies and documentation related to Mr Banus’s employment and the circumstances of his dismissal. It considered the respondent's justification for the dismissal, which was based on performance issues and workplace conduct. The Commission concluded that while the respondent had a valid reason to terminate Mr Banus's employment, it found that the manner in which the termination was handled was unfair, particularly in light of the discriminatory element. The evidence demonstrated that the respondent's actions were not only unjust but also lacked procedural fairness. Therefore, the Commission determined that the dismissal was indeed unfair, leading to the order that the respondent must reinstate Mr Banus to his former position or compensate him in lieu.

Elvedin Banus v United Resource Management Pty Ltd

DECISION

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