Mr James Roberts v Melbourne Garden Group Pty Ltd Summary

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr James Roberts filed an application against Melbourne Garden Group Pty Ltd under section 365 of the Fair Work Act 2009, alleging a contravention of the general protections against unfair dismissal. Roberts claimed that he was dismissed by Timothy McCullum, who was initially named as the respondent but was subsequently replaced by the Melbourne Garden Group Pty Ltd. The respondent did not object to the application on jurisdictional grounds but disputed whether Roberts had been dismissed. The Commission exercised its power under section 586 of the Act to correct the named respondent.

The central legal issue before the Commission was whether Roberts had been dismissed within the meaning of section 386(1) of the Fair Work Act. This required a determination before the Commission could proceed with any further steps in addressing the alleged contravention. The Commission held a determinative conference on 23 December 2024, where both Roberts and McCullum provided evidence. The Commissioner found that Roberts had indeed been dismissed under section 386(1)(a) of the Act, satisfying the requirements of section 365. The Commission intended to resolve the dispute through a conciliation conference under section 368 of the Act.

The Commission's reasoning was based on the evidence presented during the determinative conference. The findings made clear that Roberts' dismissal was in breach of Part 3-1 of the Fair Work Act. The Commission's decision to conduct a conciliation conference was in line with the procedural steps outlined in the Act, aiming to address the alleged contravention effectively. The Commission’s authority to make such determinations is rooted in the need to ensure that any alleged dismissal is properly assessed before further action is taken.

Mr James Roberts v Melbourne Garden Group Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established