Mr James Roberts v Melbourne Garden Group Pty Ltd
[2024] FWC 3573
•23 DECEMBER 2024
| [2024] FWC 3573 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr James Roberts
v
Melbourne Garden Group Pty Ltd
(C2024/8234)
| COMMISSIONER REDFORD | MELBOURNE, 23 DECEMBER 2024 |
Application to deal with contraventions involving dismissal - jurisdiction -whether Applicant dismissed - found that Applicant was dismissed within the meaning of s 386(1) of the Fair Work Act.
On 19 November 2024 Mr James Roberts filed an application pursuant to s 365 of the Fair Work Act 2009 (the Act) alleging a breach of the general protections relating to dismissal (the application). The application was made against Mr Timothy McCullum.
Mr Roberts was employed on 6 November 2024 by the Melbourne Garden Group Pty Ltd (Melbourne Garden Group). I have exercised my power pursuant to s 586 of the Act to correct the Application to replace the named Respondent with The Melbourne Garden Group Pty Ltd.
A Form F8A Response to the application was filed by the Melbourne Garden Group on 26 November 2024. The Form says there is no objection made to the application on jurisdictional or other grounds. However, the Form states and Mr McCullum has said repeatedly that Mr Roberts was not dismissed.
While ordinarily, the Commission does not have a determinative or decision-making function in relation to an application of this kind, where a Respondent disputes that an Applicant was dismissed within the meaning of the Act, a determination in relation to that dispute must be made before any other step may be taken[1]. Accordingly, I conducted a determinative conference on 23 December 2024 at which Mr Roberts appeared for himself, and Mr McCullum appeared for the Melbourne Garden Group. Mr Roberts and Mr McCullum gave evidence during the course of the determinative conference.
For reasons given on transcript earlier today, I find that Mr Roberts was dismissed within the meaning of s 386(1)(a) of the Act. Mr Roberts alleges the dismissal contravened Part 3-1 of the Act. The requirements of s 365 of the Act are met, and I intend to deal with the dispute by conducting a conciliation conference pursuant to s 368 of the Act.
COMMISSIONER
Appearances:
Mr J Roberts the Applicant
Mr T McCallum for the Respondent
Hearing details:
2024
Melbourne
December 23
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152
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