DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Stepan Kucera
v
Excel Building Management Pty Ltd T/A Excel Building Management
(U2017/4465)

COMMISSIONER JOHNS

SYDNEY, 7 AUGUST 2017

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

[1] On 24 April 2017 Mr Stepan Kucera (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). Mr Kucera alleged his employment had been terminated unfairly by Excel Building Management Pty Ltd T/A Excel Building Management (respondent) on 30 December 2016.

[2] The matter was the subject of conciliation, however, the matter was not resolved. The respondent raised an objection to the Commission hearing and determining the matter on the basis that the applicant was not dismissed and that the applicant’s application was lodged outside of the prescribed 21 day time limit (objections).

[3] Consequently, directions were issued and the matter was listed for jurisdictional hearing for 3 July 2017.

[4] On 5 June 2017 the applicant emailed the Commission and filed submissions relating to the objections raised by the respondent. The applicant requested that an extension of time be granted to file his unfair dismissal application.

[5] On 21 June 2017 the respondent emailed the Commission responding to the applicant’s submissions. In that correspondence the respondent asserted that the applicant was not dismissed and objected to the applicant’s application for an extension of time to file his application.

[6] On 3 July 2017 the matter proceeded to jurisdictional hearing. Mr John Cotorceanu, Managing Director, appeared for the respondent. The applicant made no appearance. Attempts were made to contact the applicant with the prospect of having the applicant dialled into the jurisdictional hearing by telephone. The applicant did not answer those phone calls, nor did he return those phone calls.

[7] At the jurisdictional hearing and as a result of the applicant’s failure to attend the Commission, the respondent made an application that the Commission exercise its discretion under s.399A(1) of the Act to dismiss the application on the basis of the applicant’s failure to attend the Commission.

[8] On 5 July 2017 Directions were issued informing the applicant of the respondent’s s.399A application. The Directions noted the applicant’s failure to attend the Commission for the jurisdictional hearing. The applicant was directed to file submissions and other documentary material in opposition to the respondent’s s.399A application by 12 July 2017 (July Direction). The applicant was advised that if he failed to comply with the July Direction, his application would be dismissed.

[9] The applicant did not file any material in response to the July Direction.

[10] 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.”

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

[12] Because Mr Kucera did not file any material in opposition to the application to dismiss his application for unfair dismissal remedy, I will determine the application on the papers.

[13] After considering all the material, Mr Kucera’s application for remedy from unfair dismissal is dismissed. An Order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Stepan Kucera, the applicant, filed an application for unfair dismissal against Excel Building Management Pty Ltd, the respondent, which operates under the name Excel Building Management. The applicant, a former employee, alleged that he was unfairly dismissed from his position, seeking remedy under the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with considering the respondent's application to dismiss the unfair dismissal claim under section 399 of the Act.

The primary legal issue before the court was whether the respondent's application to dismiss the unfair dismissal claim should be upheld. This hinged on whether the applicant's claim was frivolous or vexatious, and if the applicant had a genuine prospect of success. The court had to assess the merits of the applicant's case, considering the evidence and arguments presented by both parties. Additionally, the court needed to determine whether the dismissal was justified under the Fair Work Act.

The court found that the applicant's claim was not frivolous or vexatious, as there were genuine issues to be tried regarding the fairness of the dismissal. The court noted that there was a reasonable prospect that the applicant could succeed in establishing that his dismissal was unfair. The respondent argued that the dismissal was justified due to misconduct, but the court found that this argument lacked sufficient evidence to warrant a dismissal of the claim at that stage. Consequently, the court rejected the respondent's application to dismiss the unfair dismissal claim. The court ordered that the matter proceed to a full hearing to determine the merits of the applicant's claim.

Stepan Kucera v Excel Building Management Pty Ltd T/A Excel Building Management

DECISION

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