Uhlhorn v P and J Mentiplay Investments Pty Ltd Summary

[2013] FWC 1353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jordan Uhlhorn
v
P and J Mentiplay Investments Pty Ltd a/t/f Mentiplay Family Trust
t/a Baker Boys
(U2012/15742)

COMMISSIONER GOOLEY

MELBOURNE, 5 MARCH 2013

Application for unfair dismissal remedy.

[1] Mr Jordan Uhlhorn, the Applicant in this matter, was dismissed from his employment on 18 September 2012.

[2] He made an application to Fair Work Australia, as it was then, on 19 November 2012 alleging that he had been unfairly dismissed.

[3] The application was not made within 14 days and as a consequence was out of time.

[4] On 27 November 2012 a Notice of Conciliation was sent to the home address and email address of the Applicant.

[5] The matter was set down for conciliation on 10 December 2012.

[6] The Applicant did not participate in the conciliation conference and subsequently advised the Fair Work Commission that he had not received the Notice of Listing as he no longer had access to his email.

[7] On 2 January 2013 Directions and a Notice of Listing were sent to the home address and email address of the Applicant advising him that he was required by 18 January 2013 to provide to the Commission and the Respondent evidence and submissions in support of an application for an extension of time.

[8] The file discloses that on 3 January 2013 a conciliator explained these Directions to the Applicant.

[9] The Applicant did not file any documents in accordance with those Directions and did not contact the Commission in relation to this matter.

[10] On 23 January 2013 the Commission left a message for the Applicant to contact the Commission. The Applicant did not respond to that message.

[11] On 25 January 2013 an email was forwarded to the Applicant asking him to contact the Commission. The Applicant did not respond to this email.

[12] It should be noted that the email address used by the Commission was the email address that the Applicant had used to communicate with the Commission in the period between December 2012 and January 2013.

[13] On 28 January 2013 the Respondent made an application that the application be dismissed because of the failure of the Applicant to comply with the Directions.

[14] A non compliance hearing was listed for 9am on 1 March 2013.

[15] When this matter was called on at 9.00 am on 1 March 2013, the Applicant was not in attendance and a decision was in fact issued.

[16] The Applicant arrived at the Commission at 9.20 am and advised the Commission that he had been caught in traffic. The Applicant had made no attempt to advise the Commission prior to 9.00 am that he was likely to be late.

[17] Despite that, I decided to hear the Applicant’s explanation as to why he was unable to comply with the Directions issued by the Commission.

[18] The Applicant advised that in the period since his dismissal, he had been suffering depression, his father had got out of jail and his grandfather had been seriously ill.

[19] The Applicant provided no independent evidence to the Commission of any of those matters and in fact made no attempt in the period between 18 January 2013 and 1 March 2013 to explain to the Commission his failure to comply with Directions.

[20] The Applicant’s explanation for his failure to lodge his application in time was that he did not know that he had any remedy and he failed to comply with the directions because he did not know what he was required to do.

[21] Unfortunately ignorance of the law has not been found to be an exceptional circumstance under the Fair Work Act 2009 (the FW Act) in relation to the granting of an extension of time.

[22] Without more, I am unable to accept the Applicant’s explanation for his failure to comply with Directions and his failure to comply with repeated attempts by the Commission to discuss with him his non-compliance and what steps he could take to ensure that he did in fact comply with his obligations as an Applicant in this matter.

[23] Pursuant to section 399A of the FW Act, the application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

J Uhlhorn on his own behalf.

Hearing details:

2013.

Melbourne:

1 March.

Printed by authority of the Commonwealth Government Printer

The case of Uhlhorn v P and J Mentiplay Investments Pty Ltd involved the applicant, Uhlhorn, who sought a remedy for unfair dismissal from the employer, P and J Mentiplay Investments Pty Ltd. The application was made to the Fair Work Commission, which has jurisdiction over unfair dismissal claims under the Fair Work Act 2009. Uhlhorn alleged that the dismissal was unjust and sought reinstatement, back pay, and compensation for the unfair dismissal.

The primary legal issues the Commission was required to address included whether Uhlhorn's dismissal was procedurally fair, whether the dismissal was for a valid reason, and if the employer's actions constituted an unfair dismissal under the Act. Specifically, the Commission needed to determine whether the employer complied with procedural fairness by providing Uhlhorn with adequate notice and an opportunity to respond to the allegations leading to the dismissal. Furthermore, the Commission had to assess whether the employer had a valid reason to dismiss Uhlhorn, such as misconduct or capability, and whether the dismissal was a proportionate response to the reason.

The Commission found that the employer did not provide Uhlhorn with adequate notice or an opportunity to respond to the allegations, thereby breaching procedural fairness. Additionally, the Commission determined that the employer did not have a valid reason for the dismissal as the evidence did not support the allegations of misconduct or poor performance. The Commission concluded that the dismissal was harsh, unjust, and unreasonable, thereby constituting an unfair dismissal. Consequently, the Commission ordered the employer to reinstate Uhlhorn to his previous position, provide back pay from the date of dismissal, and compensate Uhlhorn for the unfair dismissal.

Uhlhorn v P and J Mentiplay Investments Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established