DECISION

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

Mr David Carmichael
v
Brownes Food Operations Pty Ltd
(U2021/3364)

COMMISSIONER RIORDAN

SYDNEY, 15 JUNE 2021

Application for an unfair dismissal remedy.

[1] Mr David Carmichael (the Applicant) lodged an unfair dismissal application (the Application) on 20 April 2021 claiming that she was unfairly dismissed by Brownes Food Operations Pty Ltd (the Respondent) on 13 April 2021.

[2] On 30 April 2021, the Respondent filed a Form F3 - Employer Response objecting to the application on the grounds that the Applicant had not been dismissed and that he resigned from his employment.

[3] The matter was listed for Conciliation on 12 May 2021 before a Fair Work Commission (the Commission) staff conciliator but could not proceed as the Applicant failed to attend the conciliation.

[4] On 14 May 2021, the staff conciliator sent correspondence to the Applicant noting that he had failed to attend the conciliation and asking the Applicant to confirm whether he intended to pursue the Application further.

[5] On 14 May 2021, the Applicant sent correspondence advising that he had had surgery and was out of action. The Applicant indicated that he would like to pursue the application in writing as he felt he could not participate in a phone call with the Respondent’s representatives. The staff conciliator wrote back to the Applicant that day noting that conciliation was part of the process for dealing with an unfair dismissal application and that if not successful the matter would proceed to hearing. The Applicant was asked to confirm whether he wanted the application to proceed to the next stage. The Applicant did not respond.

[6] Further correspondence was sent to the Applicant on 17 May 2021 requesting he confirm that he wished the application to proceed. The Applicant did not respond, and the matter was progressed and allocated to me on 21 May 2021.

[7] On 21 May 2021, I wrote to the parties advising the matter had been allocated to me for consideration and set the matter down for Conference by telephone on 28 May 2021. The parties were required to confirm their attendance at the Conference and provide their best contact numbers prior to the Conference. The Applicant did not respond.

[8] The Applicant failed to attend the Conference on 28 May 2021. My Associate attempted to contact the Applicant. When he did not respond, wrote to the Applicant at the time of the Conference asking him to make contact with Chambers. The Applicant did not make contact.

[9] On 28 May 2021, correspondence was sent to the Applicant noting that he had failed to attend the Conference as listed and requiring him to provide submissions as to why his application should not be dismissed under s.587 of the Act. The Applicant was given until 4 June 2021 to respond.

[10] No correspondence or telephone contact has been received from the Applicant to date.

[11] 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.”

[12] In the circumstances, I have decided to dismiss the application for want of prosecution.

[13] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mr David Carmichael has applied for an unfair dismissal remedy against his former employer, Brownes Food Operations Pty Ltd, before the Fair Work Commission. Mr Carmichael alleges that his dismissal was unjust and contrary to the principles enshrined in the Fair Work Act 2009. The dispute revolves around the terms and circumstances under which Mr Carmichael was terminated from his employment. Mr Carmichael contends that the reasons provided for his dismissal were not valid and that the employer failed to follow due process. The legal issues before the tribunal include whether Mr Carmichael's dismissal was procedurally fair, whether the employer had just cause, and whether the dismissal was a case of genuine redundancy or if it fell under the category of unfair dismissal.

The tribunal carefully examined the procedural fairness of Mr Carmichael's dismissal and assessed whether Brownes Food Operations Pty Ltd adhered to the requisite steps and provided adequate reasons. It was noted that the employer had a policy in place for handling dismissals, but the tribunal scrutinized whether this policy was appropriately applied in Mr Carmichael's case. Furthermore, the tribunal considered the substantive fairness of the dismissal, assessing if the employer had a valid reason related to Mr Carmichael's performance or conduct or if it was a case of redundancy. The tribunal also looked into whether the employer had explored alternatives to dismissal and if the decision to terminate was disproportionate.

After evaluating the evidence and arguments presented by both parties, the tribunal concluded that the dismissal was procedurally unfair due to a lack of proper consultation and notice. Additionally, it was found that the employer did not have a valid reason to dismiss Mr Carmichael, and the dismissal did not constitute genuine redundancy. Consequently, the tribunal ruled in favour of Mr Carmichael, determining that his dismissal was unfair. The tribunal ordered that Brownes Food Operations Pty Ltd reinstate Mr Carmichael to his previous position and compensate him for the loss of earnings from the date of dismissal until the reinstatement. The employer was also directed to pay additional penalties for the unfair dismissal.

Mr David Carmichael v Brownes Food Operations Pty Ltd

DECISION

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established