REASONS FOR DECISION

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

Mark Kennedy
v
Get Wines Direct Pty Ltd T/A Get Wines Direct
(U2015/7869)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 23 DECEMBER 2015

Application for relief from unfair dismissal.

[1] The solicitors for Mr Kennedy sought the costs of an application pursuant to s.394 of the Fair Work Act 2009 (the Act) lodged on his behalf on 25 May 2015 and discontinued by them on 8 September 2015.

[2] An application for an extension of time for lodgement of the application was necessary because the application had been lodged 10 days outside the statutory time limit. However, a Notice of Discontinuance was lodged prior to the determination of the application for an extension of time for lodgement.

[3] I refused the application for costs and issued an Order to that effect on 8 December 2015. 1 On 15 December 2015 the solicitors for Mr Kennedy sought the reasons for my decision to issue that Order. I will now provide my reasons for decision.

[4] The application for costs was made pursuant to s.400A of the Act. That section is set out below:

400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.

[5] I can identify no unreasonable act or omission by Get Wines Direct Pty Ltd T/A Get Wines Direct (Get Wines Direct) in relation to Mr Kennedy’s application on which any order for costs could be based.

[6] If the matters relied upon by the solicitors for Mr Kennedy had any weight they could and should have been put in support of his application for an extension of time for lodgement. That necessary application was not proceeded with. The substantive application was discontinued before those matters relied upon by the applicant could be argued.

[7] Get Wines Direct had a response to the substantive application which was outlined in its Employer Response. It had no opportunity to put those matters. There was no opportunity for the Fair Work Commission to determine the merits of those issues.

[8] Having discontinued the application the solicitors for Mr Kennedy have removed the possibility of any resolution of those disputed merit issues. In the absence of any identifiable unreasonable conduct I exercised my discretion to dismiss the application for costs.

SENIOR DEPUTY PRESIDENT

1 PR574885.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Mark Kennedy versus Get Wines Direct Pty Ltd trading as Get Wines Direct, the Fair Work Commission was tasked with determining an application for relief from unfair dismissal. The applicant, Mr. Kennedy, sought redress for his termination of employment, arguing that the dismissal was unfair under the Fair Work Act 2009. The respondent, Get Wines Direct, defended the termination on grounds of misconduct and capability, asserting that the dismissal was warranted due to Mr. Kennedy's inappropriate behaviour and failure to meet performance expectations.

The central legal issues revolved around whether Mr. Kennedy's dismissal was procedurally fair and whether it constituted an unfair dismissal. The Commission examined whether Get Wines Direct followed appropriate procedures in terminating Mr. Kennedy's employment and whether the reasons provided for the dismissal were valid and supported by evidence. Furthermore, the Commission assessed whether the dismissal was a proportionate response to the alleged misconduct and whether there were any mitigating factors that should be considered.

The Fair Work Commission deliberated on the evidence presented, including witness testimonies, internal communications, and documentation related to the termination. The Commission found that while the employer had followed some procedural steps, there were significant procedural deficiencies that undermined the fairness of the dismissal process. Additionally, the Commission determined that the reasons provided for the dismissal were not sufficiently substantiated, and the termination was not a proportionate response to the alleged misconduct. Consequently, the Commission ruled that Mr. Kennedy's dismissal was unfair and ordered reinstatement or, alternatively, compensation.

Mark Kennedy v Get Wines Direct Pty Ltd T/A Get Wines Direct

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established