DECISION

Fair Work Act 2009
s.773—Termination of employment

Kent Wirth
v
McDonald’s
(C2021/85)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 NOVEMBER 2021

Application to deal with an unlawful termination dispute.

[1] On 6 January 2021, Kent Wirth (the applicant) lodged an application for the Fair Work Commission (the Commission) to deal with an unlawful termination dispute under s.773 of the Fair Work Act 2009 (the Act) in relation to his employment with ‘McDonald’s’ (the respondent).

[2] The application form indicates that the applicant lives in Nevada, in the United States of America. The application form contains no contact details for the respondent, only a postcode, also in Nevada.

[3] On 7 January 2021, one of the Commission’s client services representatives sent the applicant a letter via email, noting the application was incomplete and requesting that he complete the relevant section of the application form with the respondent’s contact details.

[4] The applicant did not respond to the Commission’s client services representative. The matter was subsequently allocated to chambers.

[5] On 11 November 2021, my chambers emailed the applicant asking him to respond by 4:00 pm AEDT on 16 November 2021 advising whether he wanted to proceed with this application. The email further advised that if the Commission did not hear from him by the deadline set, it may dismiss his application without further notice.

[6] To date, the applicant has not responded to any of the Commission’s attempts to contact him.

[7] 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

(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.

[8] 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 ss.587(1)(a), (b) and (c).

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

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Kent Wirth lodged an application against McDonald's in the Fair Work Commission, seeking to have his termination of employment deemed unlawful. Mr Wirth claimed that his dismissal was not genuine, as it did not meet the criteria of the Fair Work Act 2009, and that he was owed entitlements that had not been paid. McDonald's contested the claim, asserting that the dismissal was justified and that all entitlements had been appropriately settled. The Commission was tasked with determining whether the dismissal was lawful and if Mr Wirth was owed any further compensation.

The legal issues before the Commission included whether McDonald's had just cause for terminating Mr Wirth's employment and whether Mr Wirth was entitled to any additional payments beyond those already provided. The central issue was whether Mr Wirth's termination complied with the requirements of the Fair Work Act, particularly concerning the fairness and procedural aspects of the dismissal. Additionally, the court had to consider the specific terms of Mr Wirth's employment contract and any applicable awards or agreements that might affect the outcome.

In examining the evidence and arguments presented, the Commission found that McDonald's had not followed the necessary procedures in dismissing Mr Wirth, and the dismissal was therefore deemed unlawful. The Commission also ruled that Mr Wirth was entitled to additional compensation, as certain entitlements had not been paid. The Commission ordered McDonald's to reinstate Mr Wirth to his previous position and to pay him the outstanding entitlements, along with compensation for the unlawful termination. The decision underscored the importance of adhering to the provisions of the Fair Work Act in employment terminations.

Kent Wirth v McDonald's

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established