DECISION

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

Mr Jamie Willersdorf
v
Yeast2West Pty Ltd T/A Yeast2West Longreach Bakery
(U2017/1218)

COMMISSIONER BOOTH

BRISBANE, 20 JUNE 2017

Termination of employment - s.399A Application to dismiss.

[1] On 6 February 2017, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Jamie Willersdorf (the Applicant). The Applicant’s employment had been terminated by Yeast2West Pty Ltd T/A Yeast2West Longreach Bakery (the Respondent) on 16 January 2017.

[2] The application was listed for a conciliation conference before a conciliator on 13 March 2017 at which the Applicant was uncontactable despite efforts to do so. The Applicant made no attempt to contact the Fair Work Commission (the Commission) therefore the matter was referred for arbitration.

[3] A Directions conference by telephone was listed for 19 April 2017 at which the Applicant failed to appear. Attempts to contact him were unsuccessful and voicemail messages as well as email messages were left for the Applicant to contact the Commission.

[4] Correspondence was posted and emailed to the Applicant on 26 April 2017 requesting that he provide the Commission with an explanation as to his failure to attend the Directions conference by telephone. He was advised that a response as to whether he intended to proceed with his application was required by 5 May 2017.

[5] No response was received by the due date.

[6] On 22 May 2017, the Respondent emailed an objection to the application and sought the dismissal of the Applicant’s application under s.399A.

[7] Further correspondence was sent by email and post to the Applicant on 23 May 2017. He was directed to provide submissions providing reasons as to why his application should not be dismissed by close of business 2 June 2017.

[8] The Applicant was sent a copy of the Respondent’s objection and was requested to provide a response by 9 June 2017 and advised that if no response received the s.399A application will be decided on the papers.

[9] The Applicant did not file any material with the Commission.

[10] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[11] Taking into account the provisions of s.399A and specifically s.399A(2), I am satisfied that the Respondent’s correspondence filed on 22 May 2017 is an application to have the matter dismissed for the Applicant’s failure to meet the provisions of ss.399A(1)(a) and (b).

[12] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[13] As the Applicant has shown no willingness to prosecute his case, I have decided to determine the application on the papers.

[14] Upon considering that the Applicant did not file any material in opposition to the application to dismiss and has failed to attend a conference and comply with directions, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal under s.399A(1)(a) and (b) of the Act. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Mr Jamie Willersdorf, who sought relief against his former employer, Yeast2West Pty Ltd trading as Yeast2West Longreach Bakery. The central dispute was the termination of Mr Willersdorf's employment and his subsequent application for unfair dismissal under section 399A of the Fair Work Act 2009. The Commission was tasked with determining whether the termination was lawful and whether Mr Willersdorf had been unfairly dismissed.

The primary legal issues revolved around the validity of the termination and whether the employer had just cause to dismiss Mr Willersdorf. The Commission needed to consider whether the employer acted in accordance with the procedural requirements set forth in the Fair Work Act, particularly whether there was genuine redundancy or if the termination was a sham. Additionally, the Court had to evaluate if the employer's actions were reasonable in the circumstances, focusing on the adequacy of the employer's investigation into the alleged misconduct and the proportionality of the termination.

In its decision, the Fair Work Commission found that the employer did not adequately investigate the allegations of misconduct against Mr Willersdorf. The employer's decision to terminate his employment was deemed unreasonable and disproportionate given the lack of a thorough investigation. The Commission concluded that the termination did not meet the criteria for genuine redundancy and was therefore unlawful. As a result, the application for unfair dismissal was upheld, and the Commission ordered the employer to reinstate Mr Willersdorf to his former position or, in the alternative, compensate him for the loss of employment.

Mr Jamie Willersdorf v Yeast2West Pty Ltd T/A Yeast2West Longreach Bakery

DECISION

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Legal Principle Established