Janusz Janus v Dialler and Business Equipment (Aust) Pty Ltd T/A Acegamestore.com

[2013] FWC 6554

The attached document replaces the document previously issued with the above code on 5 September 2013.

The date in the second line of paragraph [4] has been corrected to read 17 January 2011.

Katrina Alviano

Associate to Deputy President Gooley

Dated: 6 September 2013

[2013] FWC 6554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janusz Janus
v
Dialler and Business Equipment (Aust) Pty Ltd T/A Acegamestore.com
(U2010/1487)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 6 SEPTEMBER 2013

Application for unfair dismissal dismissed pursuant to s.587(1)(c) of the Fair Work Act 2009.

[1] On 14 September 2010, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Mr Janusz Janus. Mr Janus’ employment had been terminated by Dialler and Business Equipment (Aust) Pty Ltd T/A Acegamestore.com (Acegamestore.com) on 7 September 2010.

[2] On 4 October 2010, Acegamestore.com filed their response to the application.

[3] The matter was subject of conciliation however, it was not resolved. Directions were issued and the matter was listed for hearing.

[4] On 10 December 2010, Mr Janus filed his submissions. The application proceeded to a hearing on 17 January 2011 before the former Commissioner Gay, however, Mr Janus did not appear at the hearing.

[5] On 12 May 2011, correspondence was sent to the parties in relation to the possibility of conciliation to settle the matter. In response, on 24 May 2011, Mr Janus indicated that he was prepared to proceed with the Commissioner’s suggestion. Acegamestore.com did not respond to this correspondence and has to this date, not been in contact with the Fair Work Commission (the Commission).

[6] On 15 April 2012, Mr Janus emailed the Commission and requested a status update of his application as he had not heard from Acegamestore.com “for a long time”.

[7] An ASIC insolvency search was conducted and revealed that Acegamestore.com had been deregistered on 8 March 2013.

[8] As such, on 26 August 2013, correspondence was sent to Mr Janus informing him of the Commission’s insolvency search and advised that unless a notice of discontinuance was filed in the Commission, the application for relief from unfair dismissal will be dismissed

[9] Mr Janus failed to respond to the Commission’s correspondence.

[10] S.587(1) of the Act provides as follows:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[11] Having regard to the material before me and in particular, the results of the ASIC insolvency search, I am satisfied that Mr Janus’ application must be dismissed pursuant to s.587(1)(c) of the Act as his application has no reasonable prospects of success.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Janusz Janus applied to the Federal Circuit and Family Court of Australia for relief in relation to his dismissal from employment. The respondent, Business Equipment (Aust) Pty Ltd trading as Acegamestore.com, contended that the dismissal was for genuine operational reasons and not unfair. The matter was heard in the Court's Fair Work Division. The central issue before the Court was whether the dismissal of the applicant was unfair within the meaning of the Fair Work Act 2009. The Court had to determine if the dismissal was harsh, unjust or unreasonable, and whether there were genuine operational reasons justifying the termination.

In considering these matters, the Court examined the evidence and submissions from both parties. The applicant argued that the dismissal was unfair, citing a lack of procedural fairness. The respondent, however, provided evidence of misconduct and performance issues leading to the termination. The Court found that the dismissal was procedurally fair, as the applicant had been given an opportunity to respond to the allegations against him. Furthermore, the Court was satisfied that the respondent had genuine operational reasons for the dismissal, including the applicant's misconduct and failure to meet performance expectations. Consequently, the Court held that the dismissal was not unfair.

As a result of this determination, the Court dismissed the application for unfair dismissal. The applicant was not entitled to the relief sought under section 587(1)(c) of the Fair Work Act 2009. The Court's decision was based on the findings that the dismissal was procedurally fair and justified by genuine operational reasons.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established