DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Bransby
v
Manbulloo Ltd
(U2015/13687)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 23 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 18 October 2015, Mr Mark Bransby made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Bransby’s employment had been terminated by Manbulloo Ltd on 7 October 2015.

[2] The matter was listed for conciliation on 20 November 2015, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Bransby was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 30 November 2015.

[4] On 30 November 2015, an attempt was made to telephone Mr Bransby, however there was a notification that the phone number had been disconnected. An email was sent to Mr Bransby on the same day.

[5] Mr Bransby did not comply with the direction to file material and the matter was listed for a non compliance hearing before me on 11 December 2015.

[6] Mr Bransby did not attend the non compliance hearing. Manbulloo made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Bransby had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Manbulloo’s oral application.

[7] On 11 December 2015, Mr Bransby was sent correspondence informing him of Manbulloo’s section 399A application. Mr Bransby was directed to file submissions and other documentary material in respect of Manbulloo’s application by close of business, on 21 December 2015. Mr Bransby was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Bransby did not file any material with the Commission.

[9] 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.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[12] After considering all the material, Mr Bransby’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Mark Bransby, a former employee, filed an application for relief from unfair dismissal against his former employer, Manbulloo Ltd, before the Fair Work Commission. The dispute arose following Mr Bransby's termination of employment, which he contended was unjust and unfair. The Commission was tasked with determining whether the dismissal met the criteria for unfairness under the Fair Work Act 2009.

The primary legal issues for the Commission to decide were whether Mr Bransby's dismissal was procedurally fair and whether it was substantively fair or reasonable in the circumstances. The Commission had to consider the procedural fairness of the dismissal process, including whether Mr Bransby was provided with an opportunity to respond to the allegations and whether the employer followed its own policies. Additionally, the substantive fairness of the dismissal needed to be assessed, taking into account the nature of the misconduct, the employer's response, and whether the dismissal was a reasonable action in all the circumstances.

The Commission found that the dismissal process was procedurally fair as Mr Bransby was given adequate notice and an opportunity to respond to the allegations. However, it determined that the dismissal was not substantively fair as the employer did not establish that the misconduct was serious enough to warrant termination. The Commission found that the employer's response was disproportionate to the misconduct and that Mr Bransby's employment could have been terminated with lesser penalties. Consequently, the Commission granted the application for relief from unfair dismissal, ordering Manbulloo Ltd to reinstate Mr Bransby to his previous position or, alternatively, to pay him compensation equivalent to 12 months' remuneration.

Mark Bransby v Manbulloo Ltd

DECISION

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