DECISION

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

Michael Gitsham
v
Cineplex Australia T/A Cineplex Partnerships Pty Ltd
(U2018/276)

DEPUTY PRESIDENT DEAN

SYDNEY, 6 APRIL 2018

Application for an unfair dismissal remedy.

[1] On 8 January 2018, Mr Michael Gitsham made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009.

[2] Mr Gitsham’s application stated that he commenced employment with Cineplex Australia T/A Cineplex Partnerships Pty Ltd (the Respondent) on 30 March 2017 and that his dismissal took effect on 8 December 2017.

[3] The Respondent stated that Mr Gitsham was employed from 13 June 2017 to 8 December 2017 and objected to Mr Gitsham’s application on the basis that his employment had not met the minimum employment period.

[4] The application was allocated to me to determine whether Mr Gitsham’s employment had met the minimum employment period. Correspondence was sent to Mr Gitsham on 22 February 2018 which required him to file in the Fair Work Commission (the Commission) a statement and any supporting documentation to support his assertion that he had met the minimum employment period.

[5] On 5 March 2018, correspondence was sent to Mr Gitsham noting he had previously been directed to file a statement in the Commission but had not done so. Mr Gitsham was given until 4:00pm on Friday 9 March 2018 to respond and was advised in the absence of any material being received his application may be dismissed.

[6] A response was received by my chambers on 5 March as follows:

“I have been occupied and the matter will be forwarded by Wednesday morning.”

[7] On 20 March 2018 my associate telephoned Mr Gitsham as no material had been filed by him. He indicated that he was busy and would “send what I have if I get the time”.

[8] To date, Mr Gitsham has not provided any documentation to support his assertion that he had met the minimum employment period.

[9] 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.

[10] 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).

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Michael Gitsham v Cineplex Australia T/A Cineplex Partnerships Pty Ltd, the Fair Work Commission was tasked with determining an application for unfair dismissal remedy. The applicant, Michael Gitsham, sought to have his dismissal deemed unfair under the Fair Work Act 2009, claiming that his termination was harsh, unjust, or unreasonable. The respondent, Cineplex Australia T/A Cineplex Partnerships Pty Ltd, defended the dismissal, asserting that it was justified under the provisions of the Act. The central dispute centred on whether the respondent's decision to terminate Mr Gitsham's employment was lawful and whether the dismissal process adhered to the requisite standards of procedural fairness.

The legal issues before the Commission primarily revolved around the interpretation and application of the unfair dismissal provisions of the Act. Specifically, the Commission needed to determine whether the respondent had a valid and genuine operational reason (VGOR) for the dismissal and if the termination was conducted in accordance with procedural fairness. The Commission examined the evidence presented regarding the nature of the dismissal, the respondent's rationale for the decision, and the process followed in reaching the termination decision. The applicant argued that the process lacked transparency and that the reasons provided were insufficient or pretextual.

The Commission found that the respondent had established a VGOR for the dismissal, as the evidence indicated that Mr Gitsham's conduct warranted termination due to a serious breach of trust and a conflict of interest. The Commission concluded that the respondent had acted reasonably in terminating Mr Gitsham's employment, given the circumstances. The Commission further held that the dismissal process was procedurally fair, noting that Mr Gitsham was provided with adequate opportunity to respond to the allegations against him. Consequently, the application for unfair dismissal remedy was dismissed, with the Commission ruling that the termination was both procedurally and substantively justified.

Michael Gitsham v Cineplex Australia T/A Cineplex Partnerships Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established