[2010] FWA 3389

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

Mr Antony Dekort
Johns River Tavern Pty Limited T/A Blacksmiths Inn Tavern




Termination of employment - Section 399- Hearing not appropriate - Application dismissed pursuant to Section 587(1)(c)- no reasonable prospects of success .

[1] Mr Anthony Dekort was employed as a full time bar attendant at the Johns River Tavern from January 2008 to the conclusion of that employment in January 2010.

[2] Mr Dekort filed an application for relief from unfair dismissal on 18 January 2010.

[3] Attempts at conciliation were unsuccessful and the matter moved to arbitration.

[4] The employer’s response discloses a reason for termination of employment as a misrepresentation by Mr Dekort that he was unfit for duty on 30 and 31 December 2009 and a claim for payment of sick leave.

[5] Mr Dekort supported his application for sick leave with a certificate issued by Dr David Geytenbeek of the Warnervale GP Super Clinic dated 4 January 2010.

[6] The employer refutes the assertion of genuine illness and provides in his statement a photograph from a Facebook page showing Mr Dekort participating in New Years Eve celebrations on 31 December 2009.

[7] Directions issued requiring Mr Dekort to file and serve material to be relied upon in pursuit of his application by 26 March 2010. Mr Dekort confirmed that he had received the employer’s response.

[8] A statement is provided by Mr Dekort’s mother describing a meeting with Mr Galati, the respondent employer, on 6 January 2010, resulting in payment of four weeks annual leave to Mr Dekort and a request for a separation certificate which was promised but not received.

[9] Mrs Dekort states that she travelled to Johns River with her daughter for the meeting with Mr Galati as Mr Dekort had been advised by his doctor to avoid stressful situations. This medical advice is supported by a report from Adam Wiseman Psychologist and a Patient Assessment Report.

[10] Mr Dekort’s statement does not address the inconsistency of asserting to be unfit for work on 30 and 31 December 2009, appearance at a New Years Eve party, and the medical certificate issued on 4 January 2010.

[11] In the absence of any explanation I am compelled to a conclusion adverse to Mr Dekort.

[12] These circumstances require consideration pursuant to s 587 of the Fair Work Act (FW Act) which is conveniently discussed by Deputy President McCarthy in his Decision of 4 March 2010 in Applicant v Respondent [2010] FWA 1765 PR994572.

[13] McCarthy DP said:

[14] Section 399 of the FW Act states:

[15] Having considered the substantive material filed, in particular the failure of Mr Dekort to address the reasons for termination of his employment put forward by the employer, the desirability of Mr Dekort avoiding stressful situations, the lack of reasonable prospect of success, and the costs to the parties, I form the view in accordance with section 399 that a hearing is not the most efficient manner in which to determine this matter. .

[16] The applicant has failed in the face of clear evidence from the respondent to put any case to meet the assertion of misleading conduct, to explain the inconsistency of his actions, or to refute the evidence of the respondent.

[17] I dismiss the application pursuant to section 587(1)(c) of the FW Act as one which has no reasonable prospect of success.


 1   Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at 84

 2   Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92

 3   Norman v Matthews (1916) 85 LJKB 857 at 859 per Lush J

 4   PR926115

 5   160 FCR 298 at 310

6 Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at 84

 7   [2009] FCA 1500 at [43]

 8   [2010] FCA 69 at [15]

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