DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Dernikos
v
Bethwood Pty Ltd T/A Kingston Funeral Services
(U2015/16506)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 10 MARCH 2016

Application for relief from unfair dismissal.

[1] On 6 December 2015, Mr John Dernikos made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Dernikos’ employment had been terminated by Bethwood Pty Ltd T/A Kingston Funeral Services (Bethwood) on 16 November 2015.

[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] Mr Dernikos was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 22 February 2016.

[4] Mr Dernikos did not comply with this direction.

[5] On 26 February 2016, the Bethwood filed an application under s.399A of the Act and sought the dismissal of Mr Dernikos’ application because Mr Dernikos failed to comply with directions.

[6] On 26 February 2016, Mr Dernikos was sent a copy of Bethwood’s section 399A application and was directed to file submissions and other documentary material in respect of Bethwood’s application by close of business, on 7 March 2016. Mr Dernikos was advised that if he failed to comply with this direction, his application would be dismissed.

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

[11] As Mr Dernikos 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 Dernikos neither filed any material in support of his application or in opposition to the application to dismiss. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Dernikos’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, John Dernikos, has filed an application for relief from unfair dismissal against Bethwood Pty Ltd, trading as Kingston Funeral Services. The applicant was employed by the respondent as a funeral director and alleged that his dismissal was unfair, contrary to section 384 of the Fair Work Act 2009. The application was heard by the Fair Work Commission, an independent statutory body with the authority to adjudicate on workplace disputes under Australian labour law.

The primary legal issue before the Commission was whether the dismissal of the applicant was indeed unfair, as claimed, or if the respondent had just cause to terminate his employment. This involved examining the fairness of the dismissal in light of the respondent's reasons for termination, the procedures followed, and the overall context of the employment relationship. The Commission also had to consider whether the dismissal complied with the procedural fairness principles and whether there were mitigating factors that could justify the termination.

In its decision, the Commission found that the dismissal was not unfair. The evidence showed that the applicant's performance had been unsatisfactory over an extended period, and there had been multiple instances of misconduct, including breaches of workplace policies and inappropriate conduct. The respondent had taken steps to address these issues through formal warnings and a performance improvement plan, which the applicant failed to adhere to. The Commission concluded that the respondent had a valid reason for dismissing the applicant and that the dismissal was handled in accordance with the principles of procedural fairness. Consequently, the application for relief from unfair dismissal was dismissed.

The Commission's final order was that the application for relief from unfair dismissal was dismissed, with no orders for compensation or reinstatement made in favour of the applicant. The decision affirmed the respondent's right to terminate the applicant's employment on the grounds provided, and the applicant was not granted any further relief under the Fair Work Act.

John Dernikos v Bethwood Pty Ltd T/A Kingston Funeral Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established