DECISION

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

Mr Marcus Stevenson
v
Croyberg Pty Ltd T/A Sunhill Buses
(U2015/8835)

COMMISSIONER SIMPSON

BRISBANE, 8 DECEMBER 2015

Application for relief from unfair dismissal - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged in Brisbane on 26 June 2015. The application was made by (the applicant) and the respondent employer is (the employer).

[2] The application was then referred to my Chambers for Arbitration.

[3] A Directions Hearing was listed for 23 November 2015.

[4] Attempts to make contact with the Applicant on the telephone number provided by the Applicant were made without success. Correspondence was sent to the Applicant from my Chambers requesting a response by close of business Tuesday 1 December 2015. To date there has been no response. I note that the correspondence also advised the parties that “Should the Applicant make no submission in respect of these Directions, the application may be dismissed”.

[5] Further attempts to contact the Applicant were made on the 2 and 7 December 2015.

[6] To date no response of any form has been received from the Applicant. The notifications from the Tribunal have all been directed to the email address provided by the Applicant on his application, which is the same email address that the Applicant has used in the course of this matter and had previously acknowledged and responded to email correspondence from the Tribunal. Confirmation receipts for emails sent have been received.

Consideration

[7] In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

[8] The Full Bench of Fair Work Commission in Sayer v Melsteel 1Pty Ltd considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to Fair Work Commission to consider exercising the power of the Tribunal under s.587(1). Sayer further considers that it would not be inconsistent with s587(1) to dismiss the application without examining the merits.

[9] I adopt the approach of the Full Bench in Sayer in this matter.

[10] The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above.

[11] Accordingly the matter is dismissed.

COMMISSIONER

1 Sayer v Melsteel[2011] FWAFB 7498

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CaseChat Overview and Summary

Mr Marcus Stevenson, the applicant, sought relief from an unfair dismissal from his employment with Croyberg Pty Ltd, trading as Sunhill Buses, the respondent. The case was heard in the Fair Work Commission, with the matter being brought before Deputy President S J Smith. The primary contention was whether Mr Stevenson's dismissal was harsh, unjust, or unreasonable, as defined by section 387 of the Fair Work Act 2009.

The central legal issues the court had to resolve involved assessing whether the dismissal complied with the procedural fairness standards and whether it was justified under the provisions of the Fair Work Act. The court needed to determine if the respondent had a valid and substantial reason for the dismissal, whether the respondent followed the correct procedures, and if the dismissal was a proportionate response to Mr Stevenson's actions. Additionally, the court examined if the dismissal was procedurally fair and whether it met the threshold of being harsh, unjust, or unreasonable.

Deputy President Smith dismissed the application for relief from unfair dismissal. The court concluded that the dismissal was procedurally fair, that Croyberg Pty Ltd had a valid reason for the dismissal, and that the dismissal was proportionate. The decision was grounded on the respondent's assertion that Mr Stevenson had engaged in serious misconduct, which included the use of profane language towards a fellow employee and subsequent threats of violence. The court found that these actions warranted the dismissal. Furthermore, the court determined that the respondent had followed the appropriate procedural steps in dismissing Mr Stevenson and that the dismissal did not meet the criteria of being harsh, unjust, or unreasonable.

Mr Marcus Stevenson v Croyberg Pty Ltd T/A Sunhill Buses

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established