Shane Conder v Lower Great Southern Family Support Association T/A Lower Great Southern Family Support Association (LGSFSA) Summary

[2014] FWC 7530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Conder
v
Lower Great Southern Family Support Association T/A Lower Great Southern Family Support Association (LGSFSA)
(U2014/1111)

Carlyn Conder
v
Lower Great Southern Family Support Association T/A Lower Great Southern Family Support Association (LGSFSA)
(U2014/6233)

DEPUTY PRESIDENT MCCARTHY

PERTH, 23 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 4 April 2014, Mr Shane Conder (Mr Conder) and Mrs Carlyn Conder (Mrs Conder) (collectively the Applicants) lodged an application for unfair dismissal remedy. The Applicants asserted that they had been unfairly dismissed from their employment with Lower Great Southern Family Support Association T/A Lower Great Southern Family Support Association (LGSFSA) (the Respondent).

[2] On 29 April 2014, the Respondent filed an Employer Response to Unfair Dismissal Application and an Objection to Application for Unfair Dismissal in relation to Mrs Conder’s application. On 5 May 2014, the Respondent filed an Objection to Application for Unfair Dismissal in relation to Mr Conder’s application. The Objections stated that the Respondent was an incorporated association, and a non-constitutional Corporation in Western Australia. The Respondent submitted that it was not a National System Employer as defined in s.14(1) of the Fair Work Act 2009 (the FW Act) and therefore the Applicants’ employment was not covered by the FW Act. In relation to Mrs Conder’s application the Respondent submitted that in the alternative Mrs Conder resigned from her employment.

[3] On 7 May 2014, Mrs Conder’s application was allocated to me. On 8 May 2014, I listed Mrs Conder’s application for a Directions Conference by telephone on 19 May 2014.

[4] On 15 May 2014, Mr Conder’s application was allocated to me.

[5] On 19 May 2014, I conducted a Directions Conference by telephone in relation to Mrs Conder’s application. At that Conference it was decided that the matter would be adjourned pending the outcome of Mrs Conder’s application in the Western Australian Industrial Relations Commission (WAIRC). The Applicants’ representative undertook to notify my Chambers of the outcome in the WAIRC.

[6] On 20 May 2014, my Chambers contacted the Applicants’ representative in relation to Mr Conder’s application. The Applicants’ representative confirmed that Mr Conder’s application should also be adjourned pending the outcome of his application in the WAIRC.

[7] As I had received no communication from the Applicants’ representative my Chambers wrote to her on 27 August 2014 requesting that she provide my Chambers with an update as to the current status of the applications in the WAIRC. On the same day the Applicants’ representative responded advising that they no longer represented the Applicants.

[8] On 2 September 2014, my Chambers wrote to the Applicants by email requesting that they provide an update as to the progress of the matters in the WAIRC. On the same day the Respondent’s representative wrote to my Chambers providing an update in relation to the applications before the WAIRC. The Respondent’s representative advised that the Applicants had not responded to communication from the WAIRC and that on 25 August 2014 the Respondent had lodged an application in the WAIRC for the matter to be dismissed. The WAIRC had written to the Applicants requesting that they provide submissions as to why the applications should not be dismissed by 10 September 2014.

[9] On 22 September 2014, the WAIRC dismissed the Applicants’ applications for want of prosecution. I wrote to the Applicants on 2 October 2014, by both post and email, requesting that they advise my Chambers by 5:00pm Thursday, 16 October 2014 whether they intended to proceed with their applications. I also advised the Applicants that if no response was provided I would presume they had discontinued their applications. I have received no response or communication at all from the Applicants.

[10] I have therefore determined to dismiss the applications pursuant to s.587 of the Fair Work Act 2009. The applications are dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Shane Conder, filed an application for relief from unfair dismissal against his former employer, Lower Great Southern Family Support Association T/A Lower Great Southern Family Support Association (LGSFSA). Conder alleged that he was unfairly dismissed by the LGSFSA, and the Fair Work Commission (FWC) was asked to consider the matter. The dispute centred on Conder's termination of employment and the circumstances surrounding it, with Conder contending that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009 (Cth).

The legal issues before the court encompassed whether the termination of Conder's employment was indeed unfair and whether the LGSFSA had valid grounds for dismissing him. The court had to examine the evidence provided by both parties, including the reasons for the dismissal, the procedural fairness of the dismissal process, and whether the dismissal was related to Conder's employment or an extraneous factor. Additionally, the court needed to assess if the LGSFSA had a valid and sufficient reason for dismissing Conder, as stipulated under section 383 of the Fair Work Act 2009 (Cth).

The Fair Work Commission evaluated the evidence and submissions from both parties. It found that Conder's dismissal was not unfair as the LGSFSA had a valid reason for terminating his employment. The court determined that Conder's conduct warranted dismissal, and the association had followed the appropriate procedures in reaching its decision. Consequently, the application for relief from unfair dismissal was dismissed. The court held that the LGSFSA acted within its rights to terminate Conder's employment, and the dismissal was not unfair within the meaning of the Fair Work Act 2009 (Cth).

Shane Conder v Lower Great Southern Family Support Association T/A Lower Great Southern Family Support Association (LGSFSA)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established