Mr Shane Mann v Minjerribah Camping Pty Ltd T/A Straddie Camping

[2018] FWC 4838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Shane Mann

Minjerribah Camping Pty Ltd T/A Straddie Camping

(U2018/6123)

Commissioner Johns

MELBOURNE, 16 AUGUST 2018

Application for an unfair dismissal remedy – s.399 application to dismiss unfair dismissal application.

On 14 June 2018, Mr Shane Mann (Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). The Applicant alleged his employment had been terminated unfairly by Minjerribah Camping Pty Ltd T/A Straddie Camping (Respondent) on 23 May 2017.

The matter was allocated to me on 31 July 2018 to hear the determine whether the Commission should allow the Applicant a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged 1 day after the 21 day time limit provided for in the FW Act.

The matter was listed for hearing on Wednesday, 8 August 2018 by telephone.

On 1 August 2018 I issued directions that the parties both file any evidence, submissions or documents in support of their position addressing each subsection in section 394(3) of the FW Act by 5pm on Monday, 6 August 2018.

On 8 August 2018 at the telephone hearing, the Applicant’s provided number was dialled and subsequently rang out unanswered. The number was dialled a further two times to no avail.

Subsequently, the hearing commenced in the absence of the Applicant.

During the hearing, the Respondent made an application under Section 399A of the FW Act to dismiss the Applicant’s application for remedy from unfair dismissal.

On 8 August 2018 the Applicant was directed to file a response on why the matter should not be dismissed before 5:00pm on 15 August 2018. This was sent by email and express post to the Applicant.

The Applicant has not filed any materials in response.

Determination

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.

....

(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.

Because the Applicant did not file any material in opposition to the application to dismiss his application for unfair dismissal remedy, I will determine the s.399A application on the papers.

I am satisfied that the Applicant unreasonably failed to attend the hearing on 8 August 2018.

Consequently, after considering all the material, the Applicant’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

Appearances:

Mr T Johnson, Minjerribah Camping Pty Ltd T/A Straddie Camping

Hearing details:

8 August 2018 by Telephone

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission (FWC) was an application by Mr Shane Mann against Minjerribah Camping Pty Ltd T/A Straddie Camping. The applicant sought relief under the Fair Work Act 2009 (Cth) for unfair dismissal. The dispute arose from Mr Mann's termination of employment, which he claimed was unjust and discriminatory. Minjerribah Camping, on the other hand, argued that the dismissal was based on valid reasons and that Mr Mann's application should be dismissed as frivolous or vexatious.

The primary legal issue before the FWC was whether the dismissal of Mr Mann was unfair under section 383 of the Fair Work Act. The FWC had to consider the validity of the reasons provided for the dismissal, the procedural fairness of the process, and whether there was any element of discrimination or other unfair conduct. Additionally, the FWC needed to assess whether Mr Mann's application itself was frivolous or vexatious as claimed by Minjerribah Camping.

In its decision, the FWC determined that the dismissal was not unfair. The FWC found that Minjerribah Camping had provided legitimate reasons for the dismissal, which were related to performance issues and a breach of trust. The FWC also found that the process leading to the dismissal was procedurally fair, as Mr Mann was given adequate opportunities to address the issues and respond to the allegations. Furthermore, the FWC concluded that there was no evidence of discrimination or other unfair conduct in the dismissal process. Consequently, the FWC dismissed the application as frivolous or vexatious, finding that Mr Mann's claims were not well-founded and were made without reasonable prospects of success.

As a result of the FWC's decision, the application for unfair dismissal was dismissed, and costs were awarded to the respondent. The FWC ordered Mr Mann to pay the respondent's costs of the application, reflecting the frivolous nature of his claims.

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