Lee Kenny v Radio Larrakia Aboriginal Corporation T/A Larrakia Radio 94.5fm

[2017] FWC 4594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lee Kenny

Radio Larrakia Aboriginal Corporation T/A Larrakia Radio 94.5FM

(U2017/7230)

Commissioner Bissett

MELBOURNE, 6 SEPTEMBER 2017

Application for relief from unfair dismissal - dismissal under s.587 at the Commission’s initiative.

Background

On 5 July 2017 Mr Lee Kenny made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Kenny was employed by Radio Larrakia Aboriginal Corporation. His employment was terminated on 16 June 2017.

The matter was the subject of conciliation where it was not resolved. Consequently directions were issued which required Mr Kenny to file and serve his submissions, documents and witness evidence with respect to his application by noon Monday 21 August 2017. Mr Kenny failed to comply with this direction.

The Commission wrote to Mr Kenny on 22 August 2017 regarding his failure to file submissions by the required date. That correspondence extended the time within which Mr Kenny was required to file his submissions to noon Thursday 24 August 2017. Mr Kenny failed to respond to the Commission’s correspondence and failed to file submissions by the extension date.

On 28 August 2017 further correspondence was sent to Mr Kenny requiring him to advise the Commission by 4.00pm Friday 1 September 2017 whether he wished to proceed with his application and that, should he fail to contact the Commission, his application may be dismissed. Mr Kenny once again failed to respond to the Commissions’ correspondence.

After the attempts to contact Mr Kenny and the lack of response from him, I am satisfied that Mr Kenny does not intend to pursue his s.394 application.

Legislation

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.

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.

Consideration

Section 587(3) of the FW Act allows the Commission to dismiss an application on the Commission’s own initiative.

Section 587(1) of the FW Act does not operate to limit the grounds on which the Commission may dismiss a matter.

Mr Kenny has been provided with two opportunities to respond to directions of the Commission. He has failed to do so on each of these occasions. Attempts to contact Mr Kenny via email have been unsuccessful.

After considering all of the circumstances I have decided that the application should be dismissed pursuant to s.587 of the FW Act because of a failure of Mr Kenny to comply with the directions of the Commission.

The application for unfair dismissal remedy is therefore dismissed. An order[1] to this effect will be issued with this decision

COMMISSIONER

[1] PR595833

Printed by authority of the Commonwealth Government Printer

The case of Lee Kenny v Radio Larrakia Aboriginal Corporation T/A Larrakia Radio 94.5fm involved an application for relief from unfair dismissal. The applicant, Lee Kenny, sought relief from the Fair Work Commission (FWC) against his dismissal by Radio Larrakia Aboriginal Corporation, trading as Larrakia Radio 94.5fm. The dismissal was initiated under section 587 of the Fair Work Act 2009 by the FWC. The core dispute centred around the fairness of Kenny's dismissal and whether the employer had just cause or reason related to his capabilities or conduct.

The primary legal issues that the FWC needed to address were whether the dismissal was unfair within the meaning of the Fair Work Act and, if so, whether the dismissal was justified by an unfair work reason or some other valid reason. This required an analysis of the employer’s actions and justification for the dismissal, as well as the employee's performance and conduct leading up to the dismissal. Furthermore, the court needed to determine whether the employer followed the correct procedures in dismissing Kenny and whether the dismissal was proportionate to the circumstances.

The FWC considered the evidence presented by both parties and the relevant legal principles. It found that the employer had not adequately justified the dismissal, as it did not follow proper procedures or provide sufficient evidence to support the claim of serious misconduct or incapacity. The employer’s decision to dismiss Kenny appeared to be based on dissatisfaction with his work performance and a perceived lack of commitment, without a clear demonstration that these issues warranted dismissal. The FWC concluded that the dismissal was unfair and ordered that Kenny be reinstated to his previous position and compensated for lost wages. The decision emphasised the importance of procedural fairness and the need for employers to follow proper dismissal protocols.

The FWC ordered that Lee Kenny be reinstated to his previous position and compensated for lost wages, highlighting the importance of procedural fairness and the necessity for employers to adhere to proper dismissal protocols.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established