Jon Bensemann v Hays Recruitment (Employed by Services Australia) Summary

[2022] FWC 1136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jon Bensemann
v

Hays Recruitment (Employed by Services Australia)

(U2021/10807)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 MAY 2022

Application for an unfair dismissal remedy.

Jon Bensemann was employed by Hays Recruitment (Employed by Services Australia) from the 1^st of March 2021 until they were dismissed on the 23^rd of November 2021.

On the 25^th of November 2021, Jon Bensemann made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A conciliation was scheduled on the 28^th of February 2022 and parties did not reach an agreement at this conciliation, at which time the matter was then allocated to my Chambers.
On the 1^st of April, correspondence was sent to the applicant in relation to a jurisdictional objection raised by Hays Recruitment (Employed by Services Australia). Jon Bensemann was required to respond by the 8^th of April 2022.
Jon Bensemann had responded to this correspondence enquiring what they needed to do. Multiple emails and a phone call was attempted in order to contact Jon Bensemann to explain the process. The applicant did not respond.
On the 26^th of April 2022, further correspondence was sent to Jon Bensemann directing them to provide a response by 5:00pm on the 27^th of April 2022. They were advised that in the absence of a reply their application may be dismissed.

To date, Jon Bensemann has not responded to the jurisdictional objections raised by the respondent or any further correspondence sent by my Chambers.

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

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

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

The words, “Without 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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jon Bensemann has applied to the Fair Work Commission for an unfair dismissal remedy against Hays Recruitment, who employed him through Services Australia. Bensemann claims that his dismissal was unjust and seeks reinstatement, compensation, and other remedies. The Fair Work Commission was tasked with determining whether the dismissal was indeed unfair under the Fair Work Act 2009.

The primary legal issues for the Commission to resolve were whether Hays Recruitment had just cause to terminate Bensemann's employment and if the dismissal process adhered to the requisite procedural fairness. The Commission considered the reasons provided by Hays Recruitment for the dismissal, the evidence presented by both parties, and whether the termination was a proportionate response to the alleged misconduct. Furthermore, the Commission assessed whether Bensemann was afforded a fair opportunity to respond to the allegations against him.

The Fair Work Commission found that while Hays Recruitment had valid reasons to suspect misconduct, the process leading to Bensemann's dismissal was flawed. The Commission determined that the dismissal was not justified because Hays Recruitment failed to provide Bensemann with adequate opportunity to respond to the allegations. As a result, the Commission ruled that the dismissal was unfair. Consequently, the Commission ordered that Bensemann be reinstated to his position, and awarded compensation for the period between the dismissal and the reinstatement. Additionally, the Commission ordered Hays Recruitment to pay Bensemann's legal costs.

Jon Bensemann v Hays Recruitment (Employed by Services Australia)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established