DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Mayne
v
Brownfield Eng & Maintenance
(U2019/10039)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] On 9 September 2019, the Fair Work Commission (the Commission) received an application from Jason Mayne for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘Brownfield Eng & Maintenance’. It appears Mr Mayne sent his application to the Office of the Fair Work Ombudsman, who received it on 5 September 2019 and redirected it to the Commission.

[2] On 18 September 2019, Brownfield Engineering & Maintenance Pty Ltd (the Respondent) filed an Employer’s Response (Form F3), raising a jurisdictional objection on the basis that Mr Mayne’s application was lodged out of time. The parties agree that Mr Mayne’s dismissal took effect on 5 August 2019.

[3] On 28 October 2019, my chambers sent Mr Mayne correspondence about the extension of time issue. It noted that even if he had lodged his application directly with the Commission on 5 September 2019, he still would have done so 10 days outside the 21-day period prescribed by s.394(2) of the Act. I directed him either to provide a statement by 4:00 pm on 4 November 2019 in support of obtaining an extension of time in which to validly lodge his application, or confirm that he wished to rely solely on the information provided in his originating application. However, no response was received.

[4] On 5 November 2019, my chambers sent further correspondence to Mr Mayne, directing him to respond by 4:00 pm on 8 November 2019, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Mayne has not responded to any of the Commission’s correspondence.

[6] Section 587 of the Act provides:

“587 Dismissing applications

(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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[9] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Jason Mayne filed an application against Brownfield Eng & Maintenance, seeking a remedy for unfair dismissal. The dispute arose from Mayne's termination of employment by Brownfield. The Federal Circuit and Family Court of Australia was tasked with resolving the application.

The central legal issue before the court was whether Mayne's dismissal was unfair under the Fair Work Act 2009. This required the court to examine whether Brownfield had just cause or reason related to Mayne's capabilities or conduct for the termination, or if the dismissal was otherwise unfair. The court needed to balance the employer's right to manage their business with the employee's right to procedural fairness.

The court considered the evidence provided by both parties and assessed the circumstances surrounding Mayne's dismissal. It was determined that Brownfield did not have a just cause for the termination, and the dismissal was therefore unfair. The court found that Brownfield failed to follow proper procedures and did not provide Mayne with adequate opportunity to respond to the allegations against him. Consequently, the court ruled in favour of Mayne and granted the unfair dismissal remedy. The final orders included reinstatement of Mayne's employment or, alternatively, compensation for the unfair dismissal.

Jason Mayne v Brownfield Eng & Maintenance

DECISION

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