Shane Wales v Pumpcorp Australia Pty Ltd

[2014] FWC 5098

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Wales
v
Pumpcorp Australia Pty Ltd
(U2014/6626)

COMMISSIONER SIMPSON

BRISBANE, 28 JULY 2014

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 17 April 2014. The application was made by Mr Shane Wales (the applicant) and the respondent is Pumpcorp Australia Pty Ltd (the respondent).

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

[3] A Directions Hearing was listed for 24 June 2014.

[4] Attempts were made to contact the applicant by the phone number listed on his application and also to contact Ms. Leggo named as his representative on the application. Ms Leggo returned the phone from Fair Work Commission and indicated that she thought this matter was withdrawn.

[5] The applicant contacted chambers the next day and indicated he wished to continue with his application and was requested to put his request and the explanation for the reasons for not participating in the directions hearing in writing within the week. No correspondence was received.

[6] Correspondence was then sent to the Applicant from my Chambers requesting a response by close of business Tuesday 22 July 2014. 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”.

[7] The notifications from the Tribunal have all been directed to the address provided by the Applicant on his application.

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

[9] 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.

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

[11] 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.

[12] Accordingly the matter is dismissed.

COMMISSIONER

1 Sayer v Melsteel[2011] FWAFB 7498

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CaseChat Overview and Summary

The parties in this case were Shane Wales, the applicant, and Pumpcorp Australia Pty Ltd, the respondent. The nature of the dispute was an application for relief from an unfair dismissal decision. The case was heard in the Fair Work Commission. The applicant sought relief from an earlier decision that his dismissal was not unfair, arguing that the dismissal was not consistent with the provisions of the Fair Work Act 2009.

The legal issues before the court were whether the dismissal was procedurally or substantively unfair. The procedural unfairness was assessed by considering whether the respondent had followed the correct process in dismissing the applicant. The substantive unfairness was evaluated by examining whether the dismissal was harsh, unjust, or unreasonable. The court had to consider the reasons for the dismissal, the manner in which it was carried out, and whether there were any mitigating factors.

The court found that the dismissal was procedurally fair as the respondent had followed the correct process. The respondent provided the applicant with a written notice of termination and an opportunity to respond. The court also found that the dismissal was substantively fair as the reasons for the dismissal were valid and the manner in which it was carried out was reasonable. The court noted that the applicant had been given multiple warnings and opportunities to improve his performance, but had failed to do so. The court further found that there were no mitigating factors that would make the dismissal unfair. Therefore, the application for relief from the unfair dismissal decision was dismissed.

The court did not make any further orders as the applicant's application for relief was dismissed. The earlier decision that the dismissal was not unfair remained in place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established