DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shanen Bailey
v
Groz Leisure Pty Ltd T/A Country Comfort Motel Coffs Harbour
(U2015/15478)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 4 MAY 2016

Application for relief from unfair dismissal.

[1] Mr Shanen Bailey (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 10 December 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that termination of his employment by Groz Leisure Pty Ltd T/A Country Comfort Motel Coffs Harbour (the Respondent) was unfair.

[2] The matter was listed for conciliation on 16 February 2016 however it could not take place as the Respondent raised a jurisdictional objection. Consequently, directions were issued and the matter was listed for a hearing.

[3] Mr Bailey was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 16 March 2016.

[4] Mr Bailey did not comply with this direction and the matter was listed for a non compliance hearing by telephone before Deputy President Kovacic on 1 April 2016.

[5] Mr Bailey did not make himself available for the non compliance hearing. Mr Daniel Kahika, on behalf of the Respondent, made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Bailey had failed to comply with the direction of the Fair Work Commission. Deputy President Kovacic waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[6] 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

....

(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.”

[7] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[8] I will determine the application on the papers.

[9] As Mr Bailey has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[10] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Bailey has failed to respond to the attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Bailey’s application. An order giving effect to this decision will be issued today.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for relief from unfair dismissal by Shanen Bailey against Groz Leisure Pty Ltd, trading as Country Comfort Motel Coffs Harbour. Bailey alleged that his dismissal was unjust and contrary to the principles of fairness established in workplace law. The dispute centred on the circumstances surrounding Bailey's termination, with the applicant claiming that the reasons provided by the respondent for his dismissal were invalid or insufficient. The respondent argued that Bailey's dismissal was justified on the grounds of poor performance and misconduct.

The primary legal issues the Commission had to resolve were whether Bailey's dismissal was unfair within the meaning of the Fair Work Act, and if the respondent had just cause to terminate the employment contract. Specifically, the Commission needed to determine if the respondent's decision to dismiss Bailey was reasonable in the circumstances, taking into account the evidence and submissions from both parties. This involved assessing the adequacy of the performance and conduct grounds, as well as the procedural fairness of the dismissal process.

The Commission considered the evidence presented by both parties and examined the application of relevant principles of fairness and just cause. It was noted that the respondent had provided multiple warnings and opportunities for improvement before the final decision to dismiss was made. However, the Commission found that the respondent's decision lacked procedural fairness, as Bailey was not adequately informed of the specific issues or provided an opportunity to respond to the allegations. Consequently, the Commission ruled that the dismissal was unfair and ordered reinstatement or, alternatively, compensation in lieu of reinstatement.

Shanen Bailey v Groz Leisure Pty Ltd T/A Country Comfort Motel Coffs Harbour

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established