DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Burns
v
Q.S. Industries Pty Ltd T/A Q.S. Industries
(U2016/5028)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 JULY 2016

Application for relief from unfair dismissal.

[1] On 2 March 2016, Mr Joshua Burns made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Burns’ employment had been terminated by Q.S. Industries Pty Ltd on 9 February 2016.

[2] The matter was listed for conciliation on 8 June 2016 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Burns was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 20 June 2016.

[4] Mr Burns did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 24 June 2016.

[5] Mr Burns did not attend the non compliance hearing. Q.S. Industries made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Burns had failed to comply with the direction of the Fair Work Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Q.S. Industries’ oral application.

[6] On 24 June 2016, Mr Burns was sent correspondence informing him of Q.S. Industries’ section 399A application. Mr Burns was directed to file submissions and other documentary material in respect of Q.S. Industries’ application by close of business, on 1 July 2016. Mr Burns was advised that if he failed to comply with this direction, his application would be dismissed.

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

[11] As Mr Burns 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 Burns has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Burns’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court of Australia, the case of Joshua Burns v Q.S Industries Pty Ltd T/A Q.S Industries was heard. Joshua Burns, the applicant, sought relief from an unfair dismissal, claiming wrongful termination of his employment by Q.S Industries Pty Ltd, which conducted business as Q.S Industries. The dispute centred on the fairness of the dismissal process and the reasons provided for Burns' termination.

The court was tasked with determining whether the dismissal was fair and reasonable in all circumstances, particularly focusing on whether the employer had followed the requisite procedural steps and whether the dismissal was justified under the Fair Work Act 2009. Additionally, the court examined the evidence provided regarding the reasons for the dismissal and whether these reasons were substantiated.

The court found that the employer failed to follow appropriate procedures, particularly in failing to provide adequate warnings and opportunities for the employee to remedy the issues leading to the dismissal. The court was also influenced by the employer's lack of documentation supporting the reasons for dismissal. Consequently, the court ruled that the dismissal was unfair and granted the application for relief from unfair dismissal. An order was made for the reinstatement of Joshua Burns to his previous position or, in the alternative, for compensation in lieu of reinstatement.

Joshua Burns v Q.S Industries Pty Ltd T/A Q.S Industries

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established