DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Visarut Chookhamdee
v
Binks Automotive Group Pty Ltd T/A Binks Ford
(U2014/12947)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 2 MARCH 2015

Application for relief from unfair dismissal.

[1] On 1 October 2014, Mr Visarut Chookhamdee made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Chookhamdee’s employment had been terminated by Binks Automotive Group Pty Ltd T/A Binks Ford on 25 September 2014.

[2] The matter was listed for conciliation on 28 October 2014 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Chookhamdee was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 12 January 2015.

[4] Mr Chookhamdee did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 20 January 2015.

[5] Mr Chookhamdee did not attend the non compliance hearing. Binks made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Chookhamdee had failed to comply with the direction of the Fair Work Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Binks’ oral application.

[6] On 20 January 2015, Mr Chookhamdee was sent correspondence informing him of Binks’ section 399A application. Mr Chookhamdee was directed to file submissions and other documentary material in respect of Binks’ application by close of business, on 30 January 2015. Mr Chookhamdee was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Chookhamdee 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

(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.

[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 Chookhamdee did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Visarut Chookhamdee, sought relief from unfair dismissal against Binks Automotive Group Pty Ltd, trading as Binks Ford. The dispute arose from the applicant's termination of employment, which he claimed was unjust and discriminatory. The matter was heard in the Fair Work Commission.

The central legal issues revolved around whether the dismissal was harsh, unjust, or unreasonable, as defined under section 386 of the Fair Work Act 2009. Additionally, the court needed to determine if the dismissal constituted a discriminatory act, as potentially prohibited by section 351 of the Fair Work Act. This required an examination of the employer's reasons for dismissal and the fairness of the process followed.

The Fair Work Commission found that the applicant's dismissal was not harsh, unjust, or unreasonable. The employer had provided clear reasons for the dismissal, which were substantiated by evidence. The process leading to the dismissal was deemed fair, with the applicant afforded appropriate opportunities to respond to the allegations against him. Consequently, the Commission dismissed the application for relief from unfair dismissal. The decision was based on the balance of reasons provided by the employer and the procedural fairness observed in the dismissal process.

Visarut Chookhamdee v Binks Automotive Group Pty Ltd T/A Binks Ford

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established