Gagandeep Punia v The Trustee for Benning Family Trust

[2021] FWC 3822

[2021] FWC 3822

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Gagandeep Punia
v
The Trustee for Benning Family Trust
(C2021/2027)

DEPUTY PRESIDENT BOYCE SYDNEY, 5 JULY 2021

Application to deal with contraventions involving dismissal.

Introduction

[1] On 9 April 2021, Mr Gagandeep Singh Punia (Applicant) filed an application for a general protections involving dismissal with the Fair Work Commission (Commission), against his employer, the Trustee for Benning Family Trust T/A Bennings Blueberries (Respondent). The Applicant filed his application with the assistance of his then representative, Mr Serge Gorval of Gorval Lynch lawyers.

[2] The Applicant asserts that he was dismissed for exercising a workplace right on 21 March 2021 and relies generally upon s.340 of the Fair Work Act 2009 (Act) in that regard. The Respondent asserts that it did not “dismiss” the Applicant from his employment, rather, that the Applicant is on leave due to personal and medical reasons.

Compliance with Directions

[3] Directions were issued on 5 May 2021 for the parties to file and serve submissions, witness statements and evidence. Chambers then received a Form F54 indicating that Mr Gorval ceased to represent the Applicant.

[4] The Respondent failed to comply with Directions and was issued with correspondence requesting further submissions regarding their non-compliance (Show Cause Email) on 20 May 2021. The Respondent replied indicating that they had not received the Directions and requested a 7-day extension to comply. The Respondent was granted an extension to file by 4:00pm AEDT Monday, 24 May 2021. The Respondent then filed and served an undated and unsigned outline of submissions on 24 May 2021, with no supporting witness statements or other evidence.

[5] It is noted that the Applicant also responded to the same Show Cause Email on 20 May 2021, indicating that “I am admitted in hospital I have blood clot in my leg and lung I have medical certificate and I’ll send u my all medical condition details sorry for daily”. The Applicant was sent correspondence from Chambers explaining that it was the Respondent that had failed to comply with Directions. The Applicant then sent a further email on 24 May 2021 saying “I am admitted in base hospital coffs harbour nsw 2456. I have blood clot in my left leg and lungs. When I. Out of that ill send u my all medical report. Just try to under my situation. That's not fair. Just remember. Fair work. Thanks.”

[6] The Applicant then failed to comply with Directions and was issued with a Show Cause Email himself on 3 June 2021. The Applicant did not reply.

[7] The Applicant was contacted by my Associate by telephone on 7 June 2021. The Applicant indicated that he was not aware of the Directions issued or his non-compliance with such Directions, however, stated that he had been in hospital, and had now been discharged and was on various medications. The Applicant was again requested to file and serve any evidence and submissions that he wished to rely upon at hearing and was asked to reply to the Show Cause Email with his explanations and medical evidence if possible.

[8] The Applicant was sent a further email from Chambers on 7 June 2021, requesting a written response to the Show Cause email, as discussed previously over the telephone. The Applicant did not respond, and did not file and serve submissions, written statements or evidence. Further, Applicant did not provide any medical evidence.

Hearing

[9] I conducted a hearing on 17 June 2021 to resolve the jurisdictional dispute between the parties (i.e. as to whether the Applicant was dismissed by the Respondent).

[10] Mr Punia appeared for himself. Ms Jacqui Bromwell, Manager, appeared for the Respondent.

[11] Ms Bromwell gave oral evidence that the Applicant, a casual employee, was believed to have a drug and alcohol problem and had been asked to not attend the workplace until he was well again and sober. 1 Ms Bromwell indicated that once the Applicant was well and uninhibited by drugs and alcohol, he was welcome to contact the Respondent to resume work.2

[12] The Applicant’s oral evidence at the hearing included that he was not currently at work, as the “hospital” had directed him not to work for another three to six months, 3 and that he understood that he could apply for more shifts with the Respondent when he got better.4

[13] As the parties appeared to be in agreement that the Applicant was not dismissed, the Applicant was asked whether he wanted to withdraw his claim. I note at this stage that the Applicant appeared to not know that Gorval Lynch had ceased to represent him, as he responded that he did not want to withdraw his claim without first confirming with his lawyer. 5

Conclusion

[14] Having regard to the oral evidence and the submissions of the parties at the hearing, I find that the Applicant has not been dismissed by the Respondent. Pursuant to this finding, the Commission has no further jurisdiction to deal with the Applicant's general protections claim. An Order will be dismissing the application will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR731252>

 1   Transcript at PN36, PN66.

 2   Ibid at PN40.

 3   Ibid at PN26, PN71-75.

 4   Ibid at PN34, PN54, PN111.

 5   Ibid at PN 83, 115.