Trent Gunning v Australian Comfort Group Pty Ltd T/A Sleepmaker

[2013] FWC 6630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trent Gunning
v
Australian Comfort Group Pty Ltd T/A Sleepmaker
(U2013/270)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 SEPTEMBER 2013

Application for remedy for unfair dismissal dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 1 February 2013, an application under s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Trent Gunning. Mr Gunning’s employment had been terminated by Australian Comfort Group Pty Ltd T/A Sleepmaker (Sleepmaker) on 15 January 2013.

[2] The matter was listed for conciliation on 21 February 2013 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Gunning was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 22 April 2013.

[4] Mr Gunning failed to comply with this direction and the matter was listed for a non compliance hearing before Commissioner Jones on 17 May 2013.

[5] On 20 June 2013, Sleepmaker filed an objection to the application and sought the dismissal of the Mr Gunning’s application. Sleepmaker based their objection on grounds which include failing to attend the non compliance hearing.

[6] On 25 July 2013, Mr Gunning was sent correspondence informing him of the Respondent’s s.399A application. Mr Gunning was directed to file submissions and other documentary material in respect of Sleepmaker’s application by close of business, 9 August 2013. It was noted in the correspondence that if no response is received, Sleepmaker’s application will be dealt with on the papers.

[7] Mr Gunning did not file any material with the Commission.

[8] 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

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

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

[10] As Mr Gunning did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[11] After considering all the material, I have decided to dismiss Mr Gunning’s application for remedy from unfair dismissal. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Trent Gunning, an employee, brought an application against Australian Comfort Group Pty Ltd T/A Sleepmaker for unfair dismissal. The dispute centred on the termination of Gunning's employment by Sleepmaker and his claim that the dismissal was unjust and contrary to the principles outlined in the Fair Work Act 2009. The Commission was tasked with determining whether the dismissal met the criteria for unfairness and whether any remedy should be awarded to Gunning.

The legal issues before the Commission involved interpreting the provisions of the Fair Work Act, particularly Section 383, which defines the grounds for unfair dismissal, and assessing the procedural fairness of Sleepmaker's actions. The Commission had to consider whether the reasons provided for Gunning's dismissal were genuine, whether the decision to terminate was proportionate, and if there were adequate consultation processes followed. Furthermore, the Commission evaluated the overall fairness of the dismissal in light of the circumstances presented by both parties.

After thorough consideration of the evidence and submissions, the Commission determined that the dismissal was not unfair within the meaning of the Act. The reasons provided by Sleepmaker for Gunning's termination were deemed sufficient and aligned with the grounds for dismissal under Section 383. The Commission also found that the procedural fairness requirements were met, as Sleepmaker had adequately consulted with Gunning and provided him with an opportunity to respond to the allegations against him. Consequently, the application for a remedy for unfair dismissal was dismissed under Section 399A of the Fair Work Act.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established