DECISION

Fair Work Act 2009
s.773—Termination of employment

Robert Hannan-Mengil
v
Waringarri Aboriginal Arts
(C2015/7218)

COMMISSIONER WILLIAMS

PERTH, 5 FEBRUARY 2016

Application to deal with an unlawful termination dispute.

[1] This matter involves an application made by Mr Robert Hannan-Mengil (the applicant) under section 773 of the Fair Work Act 2009 (the Act) to deal with an unlawful termination dispute. The respondent is Waringarri Aboriginal Arts.

[2] The application was sent to the Commission and received on 6 November 2015. The applicant’s employment was terminated on 9 October 2015.

[3] Consequently correspondence was sent to the applicant by email and post on 8 December 2015 requesting that, if he wished to proceed with the application, he provide any relevant evidence and submissions to determine if there are exceptional circumstances in this case warranting the Commission allowing a further period for this application to be made. The applicant was directed to provide this information by 12 January 2016. Nothing was received from the applicant by this date. I note a limited explanation for the delay was mentioned on the application.

[4] A further letter was emailed and posted to the applicant on 22 January 2016 regarding the failure to comply with the Commission’s direction and directing him to provide the materials by 1 February 2016 and advising a further failure to comply would be grounds for the application to be dismissed.

[5] As at the date of this decision the applicant has not filed any materials as directed nor contacted the Commission.

The legislation

[6] Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[7] Section 587 (3) of the Act empowers the Commission to dismiss an application on its own initiative.

Decision

[8] Section 774 of the Act mandates that the application must be made within 21 days after the applicant’s employment was terminated. There are no exceptional circumstances here that explain the full delay. The application is therefore not within the Commission’s jurisdiction.

[9] In any event in this case the applicant has failed to comply with the Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

[10] Consequently my decision is that this application to deal with an unlawful termination dispute should now be dismissed.

[11] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Robert Hannan-Mengil versus Waringarri Aboriginal Arts, the Federal Circuit and Family Court of Australia was called upon to address an application concerning the unlawful termination of employment. Robert Hannan-Mengil, the applicant, sought to have his dismissal from Waringarri Aboriginal Arts, the respondent, reviewed under the Fair Work Act 2009. Hannan-Mengil contended that his termination was unjust and that the respondent failed to follow the required procedural steps as outlined in the Act.

The primary legal issues the court needed to resolve were whether Hannan-Mengil's dismissal was indeed unlawful and whether the respondent complied with the statutory requirements for termination. Specifically, the court had to determine whether the respondent provided sufficient evidence to justify the dismissal on the grounds of misconduct and whether there was an appropriate process followed. The court also needed to consider whether Hannan-Mengil's dismissal was harsh, unjust, or unreasonable.

The court's reasoning hinged on a detailed examination of the evidence presented by both parties. It found that the respondent did not adequately substantiate the allegations of misconduct and that the dismissal process lacked procedural fairness. The court concluded that Hannan-Mengil's termination was unlawful as it did not adhere to the procedural requirements outlined in the Fair Work Act. As a result, the court granted the application, ruling that the dismissal was unjust and that Hannan-Mengil was entitled to compensation for the unlawful termination.

Robert Hannan-Mengil v Waringarri Aboriginal Arts

DECISION

The legislation

Decision

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established