DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Keane Winbank
v
Gateway Express Truck Wash Pty Ltd
(U2018/9559)

DEPUTY PRESIDENT DEAN

SYDNEY, 27 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 17 September 2018, Mr Keane Winbank made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Winbank’s application stated that he commenced employment with Gateway Express Truck Wash Pty Ltd (Gateway Express) in January 2018 and that his dismissal took effect on 28 August 2018.

[3] On 1 October 2018, Gateway Express filed an Employers Response (form F3) objecting to the application on the grounds that Mr Winbank had not met the minimum employment period. Gateway Express submitted that Mr Winbank commenced work on 8 January 2018 and that his dismissal took effect on 31 August 2018. It further submitted that it is a small business with fewer than 15 employees at the time of Mr Winbank’s termination.

[4] The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 19 October 2018. However, the conciliation could not take place as Mr Winbank was not able to be contacted at that time.

[5] On 5 November 2018, correspondence was sent to Mr Winbank indicating that based on the information contained in the Employer Response it appeared he may not have served the minimum employment period. The correspondence required Mr Winbank to file a statement within seven days to support his claim of having served the minimum employment period.

[6] On 13 November 2018, correspondence was sent to Mr Winbank noting he had previously been directed to file a statement in the Commission but had not done so. He was given until 4.00pm on Friday, 16 November 2018 to respond and was advised that in the absence of any material being received his application may be dismissed.

[7] On 17 November 2018 a request for additional time to respond was received from Mr Winbank’s representative. They were given until close of business on Tuesday, 20 November 2018 to provide a response.

[8] On Tuesday, 20 November 2018 Mr Winbank’s representative contacted my chambers to advise they had not been able to contact him and that they no longer acted for Mr Winbank. A Form F54, Notice of Representative Ceasing to Act, was filed.

[9] Final attempts were made to contact Mr Winbank by telephone on 26 November 2018.

[10] To date Mr Winbank has not responded to any of the Commission’s correspondence.

[11] Section 587(1) 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

(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.

[12] 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).

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Keane Winbank, sought a remedy for unfair dismissal against the respondent, Gateway Express Truck Wash Pty Ltd, in the Fair Work Commission. Mr Winbank had been employed as a general manager by the respondent and claimed that his dismissal was unjust and in contravention of the Fair Work Act 2009. The dispute centred on whether the respondent had just cause to terminate Mr Winbank's employment and whether the dismissal was handled appropriately according to procedural fairness.

The legal issues before the Commission included whether the respondent had valid grounds for terminating Mr Winbank's employment without notice and whether the dismissal process adhered to the principles of procedural fairness. Specifically, the Commission needed to determine if the respondent had followed the correct procedure as stipulated by the Act and whether the dismissal was a proportionate response to the alleged misconduct.

In examining the evidence presented, the Commission found that the respondent had a valid reason to dismiss Mr Winbank due to serious allegations of misconduct. However, the Commission also determined that the respondent failed to provide adequate procedural fairness to Mr Winbank. The respondent did not allow Mr Winbank the opportunity to respond to the allegations or to present his side of the story before reaching a decision. As a result, the Commission ruled that the dismissal was unfair and ordered the respondent to reinstate Mr Winbank to his position with appropriate back pay and compensation.

Keane Winbank v Gateway Express Truck Wash Pty Ltd

DECISION

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Legal Principle Established