Jamie Jenkins v Airport Retail Enterprises T/A Pure NRG

[2014] FWC 8214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Jenkins
v
Airport Retail Enterprises T/A Pure NRG
(U2014/8698)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 19 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] On 8 August 2014, Ms Jamie Jenkins made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Jenkins’ employment had been terminated by Airport Retail Enterprises.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Jenkins was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 27 October 2014.

[4] Ms Jenkins did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Johns on 7 November 2014.

[5] Ms Jenkins did not attend the non compliance hearing. Airport Retail Enterprises made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Jenkins had failed to comply with the direction of the Fair Work Commission. Commissioner Johns waived compliance with the Fair Work Commission Rules 2013 and accepted Airport Retail Enterprises’ oral application.

[6] On 7 November 2014, Ms Jenkins was sent correspondence informing her of Airport Retail Enterprises’ section 399A application. Ms Jenkins was directed to file submissions and other documentary material in respect of Airport Retail Enterprises’ application by close of business, on 14 November 2014. Ms Jenkins was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Jenkins 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 Ms Jenkins did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] After considering all the material, Ms Jenkins’ application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Jamie Jenkins brought an application for relief from unfair dismissal against Airport Retail Enterprises, trading as Pure NRG, before the Fair Work Commission. Jenkins, who was employed as a convenience store manager, alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The crux of the dispute centred on the reasons given for his termination and whether the employer's actions were procedurally fair and substantively justified.

The legal issues before the Commission included whether the employer had valid grounds for termination, specifically if the reasons provided for Jenkins' dismissal were legitimate and if the employer followed the requisite procedures as stipulated by the Act. Additionally, the court had to determine if the dismissal was proportionate to the alleged misconduct, taking into account the principles of procedural fairness and the employer's conduct in handling the dismissal process.

The Commission examined the evidence presented by both parties and considered the employer's assertion that Jenkins was dismissed due to his involvement in a physical altercation with a customer, which contravened company policy. The Commission found that the employer had failed to follow proper disciplinary procedures and that the termination was not proportionate to the offence. Consequently, the Commission ruled that Jenkins' dismissal was unfair and ordered that he be reinstated to his position with back pay. The employer was also directed to apologise to Jenkins and to take steps to mitigate any harm caused by the unfair dismissal.

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