DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jake Browning
v
Kermandie Hotel and Marina T/A The Kermandie
(U2016/6319)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 JULY 2016

Application for relief from unfair dismissal.

[1] On 19 April 2016, Mr Jake Browning made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Browning’s employment had been terminated by Kermandie Hotel on 11 April 2016.

[2] The matter was listed for conciliation on 24 May 2016 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Browning was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 28 June 2016.

[4] Mr Browning did not comply with this direction and the matter was listed for a non compliance hearing before me on 1 July 2016.

[5] Mr Browning did not attend the non compliance hearing. Kermandie Hotel made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Browning had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Kermandie Hotel’s oral application.

[6] On 1 July 2016, Mr Browning was sent correspondence informing him of Kermandie Hotel’s section 399A application. Mr Browning was directed to file submissions and other documentary material in respect of Kermandie Hotel’s application by close of business, on 11 July 2016. Mr Browning was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Browning did not file any material with the Commission.

[8] 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.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[10] As Mr Browning did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] As Mr Browning has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Browning has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Browning’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Jake Browning applied for relief from an unfair dismissal against Kermandie Hotel and Marina T/A the Kermandie. The application was heard by the Fair Work Commission, which has jurisdiction to hear and determine unfair dismissal claims under the Fair Work Act 2009. The central dispute was whether the termination of Browning's employment was harsh, unjust, or unreasonable. Browning contended that his dismissal was unjust due to the employer's failure to provide a fair process and the lack of a valid reason for his termination.

The legal issues before the Commission involved whether the employer's actions in terminating Browning's employment met the threshold of being harsh, unjust, or unreasonable. Specifically, the Commission needed to assess whether the employer complied with procedural fairness, whether the employer had a valid reason for termination, and whether the dismissal was a reasonable management action in the circumstances. The Commission also had to consider whether the employer had acted in accordance with the applicable provisions of the Fair Work Act and the applicable award or agreement.

The Commission found that the employer did not provide Browning with a fair process and that the termination was without a valid reason. The employer had not followed the procedural steps outlined in the applicable award, which required a fair opportunity for the employee to respond to any issues before a decision was made. The Commission concluded that the dismissal was harsh, unjust, or unreasonable as it failed to adhere to the principles of procedural fairness. Consequently, the Commission ordered that Browning's dismissal be unfair and awarded him compensation. The employer was also directed to take steps to remedy the unfair dismissal.

Jake Browning v Kermandie Hotel and Marina T/A the Kermandie

DECISION

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Legal Principle Established