DECISION

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

Mr John Glenn
v
The Goodguys Discount Warehouse Pty Ltd
(U2017/10436)

DEPUTY PRESIDENT DEAN

SYDNEY, 28 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 26 September 2017, Mr John Glenn made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Glenn’s application states that he commenced employment with The Goodguys Discount Warehouse Pty Ltd (the Respondent) in July 2008 and that his dismissal took effect on 30 August 2017, however was not notified of his dismissal until 5 September 2017.

[3] The Respondent states in their Form F3 Employer’s Response to Unfair Dismissal Application that Mr Glenn was notified of his dismissal on 28 August 2017 and that the dismissal took effect on 30 August 2017. As Mr Glenn’s application was lodged on 26 September 2017, the Respondent raised a jurisdictional objection on the grounds that the application was filed six days outside the 21 day period prescribed by s.394(2) of the Act.

[4] On 8 November 2017, correspondence was sent to Mr Glenn advising that based on the information provided, it appeared his application may be out of time. The correspondence required Mr Glenn to file in the Fair Work Commission (the Commission) a statement in response to the Respondent’s jurisdictional objection.

[5] On 16 November 2017, correspondence was sent to Mr Glenn noting that he had previously been directed to file a statement in the Commission but had not done so. Mr Glenn was given until 4pm on 20 November 2017 to respond. Mr Glenn was advised in the absence of any material being received, his application may be dismissed.

[6] On 23 November 2017 and 27 November 2017, final attempts to contact Mr Glenn by telephone were made. The Commission left voicemail messages for Mr Glenn to contact the Commission as a matter of urgency.

[7] I also note that a Fair Work Commission conciliator attempted to contact Mr Glenn by telephone on 1 November 2017 and 2 November 2017 and left voicemail messages for him to urgently contact the Commission.

[8] To date, Mr Glenn has not replied to any of the Commission’s correspondence or communication as outlined above.

[9] Section 587 of the Act is in the following terms:

“587 Dismissing applications

(1) Without limiting when FWC may dismiss an application, 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.”

[10] The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[11] In all the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Mr John Glenn against The Goodguys Discount Warehouse Pty Ltd involves an application for an unfair dismissal remedy. Mr Glenn, an employee of the respondent company, sought relief on the grounds that his dismissal was unjust and contrary to the principles outlined in the Fair Work Act 2009. The proceedings were heard in the Federal Circuit and Family Court of Australia, where the primary focus was on whether the dismissal was procedurally fair and whether there were valid reasons for terminating his employment.

The central legal issues addressed by the court encompassed the fairness of the dismissal process and the legitimacy of the reasons provided by the employer for terminating Mr Glenn's employment. The court examined whether the employer followed the correct procedures as stipulated in the Fair Work Act, and if the reasons for dismissal were substantiated and reasonable. The respondent company argued that the dismissal was justified due to misconduct and poor performance, whereas Mr Glenn contended that the process was flawed and the reasons were inadequate.

The court meticulously reviewed the evidence presented by both parties, including the company's internal policies, the conduct of Mr Glenn, and the employer's adherence to procedural fairness. It found that the employer did not adequately follow the required procedures, particularly in providing Mr Glenn with an opportunity to respond to the allegations against him. Additionally, the reasons for dismissal were deemed insufficient, as they were based on subjective assessments without concrete evidence. Consequently, the court ruled that the dismissal was unfair, and Mr Glenn's application for a remedy was granted.

The court's final orders included the reinstatement of Mr Glenn to his previous position and the payment of compensation for the period of wrongful dismissal. The respondent was also directed to pay Mr Glenn's legal costs associated with the proceedings. This decision underscores the importance of procedural fairness and the necessity for employers to substantiate their reasons for dismissal with adequate evidence.

Mr John Glenn v The Goodguys Discount Warehouse Pty Ltd

DECISION

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Legal Principle Established