Mr Benjamin Thompson v MBM Harvesting Solutions Pty Ltd

[2013] FWC 9373

FAIR WORK COMMISSION

DECISION

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

Mr Benjamin Thompson
v
MBM Harvesting Solutions Pty Ltd
(U2013/2408)

COMMISSIONER BOOTH

BRISBANE, 6 DECEMBER 2013

Application dismissed under s.587 of the Act.

[1] On 19 July 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for alleged unfair dismissal was lodged by Mr Benjamin Thompson (the Applicant). At the time the Applicant was represented by Employee Assist, however, a Form F54 Notice of Representative Ceasing to Act was lodged on 21 November 2013.

[2] The matter was unsuccessfully conciliated by Mr Cross and was to proceed to arbitration hearing.

[3] The matter was listed for Directions on 21 November 2013 at 10.00am by telephone. Mr Brian Schultz appeared by telephone on behalf of the Respondent and 3 attempts to contact the Applicant were unsuccessful.

[4] Correspondence was posted to the Applicant on 25 November 2013 requiring him to advise the Fair Work Commission (the Commission) by 4 December 2013 whether he wished to proceed with his Application. To date no response has been received.

[5] After the attempts to contact the Applicant and the lack of response from the Applicant, I am satisfied the he does not intend to pursue his Application.

[6] 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

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.

[7] I have decided to dismiss the Application under s.587 on the basis that the Applicant has failed to attend a conference conducted by the Commission and failed to comply with a direction of the Commission relating to the Application. An Order to this effect will be issued simultaneously.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Benjamin Thompson applied for an order under section 587 of the Fair Work Act 2009 to terminate his employment with MBM Harvesting Solutions Pty Ltd. The application arose from an employment dispute concerning his dismissal. The Fair Work Commission heard the matter. The primary issue before the Commission was whether the dismissal was unfair under section 383 of the Act. This involved assessing whether the dismissal was harsh, unjust or unreasonable, taking into account all relevant circumstances, including the nature of the breach, the size of the employer, and any mitigating factors.

The Commission considered the evidence presented by both parties. Mr Thompson argued that his dismissal was unfair due to the lack of a proper investigation and the employer's failure to consider relevant mitigating factors. MBM Harvesting Solutions Pty Ltd contended that the dismissal was justified due to serious misconduct, which warranted immediate termination. After examining the evidence, the Commission found that while Mr Thompson's actions were indeed serious, the employer's handling of the dismissal process lacked procedural fairness. However, the Commission concluded that the overall circumstances did not render the dismissal harsh, unjust or unreasonable to the extent that it warranted an order under section 587 of the Act.

The Commission dismissed the application, finding that while the dismissal process could have been improved, the outcome was not so unfair as to warrant termination of employment. Consequently, the application was dismissed under section 587 of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established