DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Brackin
v
Bradken Resources
(U2020/7523)

VICE PRESIDENT CATANZARITI

SYDNEY, 29 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 1 June 2020, the Fair Work Commission (the Commission) received an application from Joshua Brackin for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘Bradken Resources’.

[2] Mr Brackin said his dismissal took effect on 7 May 2020. Accordingly, it appeared that he had lodged his application more than 21 days after his dismissal took effect.

[3] On 12 June 2020, my chambers sent Mr Brackin correspondence about the requirement to obtain an extension of time for his application to be validly lodged. I directed him to respond by 5:00 pm on 17 June 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 18 June 2020, my chambers sent further correspondence to Mr Brackin, directing him to respond by 4:00 pm on 22 June 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Brackin 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

CaseChat Overview and Summary

In the matter of Joshua Brackin versus Bradken Resources, the Fair Work Commission was tasked with determining whether the dismissal of Mr Brackin was unfair. Mr Brackin, the applicant, sought remedy for his dismissal, claiming it was unjust and unreasonable. Bradken Resources, the respondent, defended the dismissal, asserting it was carried out in accordance with the applicable laws and policies. The crux of the dispute centred on the validity and procedural fairness of the dismissal process as well as the grounds for the dismissal itself.

The central legal issues before the Commission were whether the dismissal was procedurally fair and whether it was based on valid grounds. Mr Brackin argued that the process was flawed and that the reasons for his dismissal were not substantial. The respondent contended that all necessary procedures were followed and that the dismissal was justified based on the employee's conduct. The Commission needed to assess the evidence and arguments presented by both parties to determine if the dismissal was fair and lawful.

The Commission examined the evidence and arguments presented, focusing on the procedural fairness and the substantive grounds for dismissal. It considered the respondent's adherence to its own policies and procedures in handling the dismissal, as well as the nature and severity of the alleged misconduct. The Commission found that the dismissal process, while generally followed, lacked sufficient procedural fairness, particularly in the handling of the final decision-making process. Additionally, it determined that the grounds for dismissal, while serious, did not warrant such a severe outcome without further consideration of lesser penalties. Consequently, the Commission ruled that the dismissal was unfair.

In light of its findings, the Commission ordered that the dismissal be deemed unlawful and unfair. It mandated the respondent to reinstate Mr Brackin to his former position and to provide appropriate compensation for the period of lost employment. Furthermore, the Commission recommended that the respondent review and improve its internal disciplinary procedures to ensure greater fairness and adherence to legal standards in future cases.

Joshua Brackin v Bradken Resources

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established