[2015] FWC 1929


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr John Bevege
Javelin Transport - Kevin Lambert & Paul Scott T/A Resource Management Group



Application for relief from unfair dismissal - dismissal unfair - reinstatement not appropriate - discretion to award compensation not exercised on the basis that Applicant has not established a basis for compensation.

[1] This is the third Decision in relation to Mr Bevege’s application for unfair dismissal remedy. This Decision should be read in conjunction with my two previous decisions. 1

[2] A copy of the Decision of 12 March 2015 was sent to Mr Bevege in hardcopy on 12 March 2015. The Decision was sent via express post with a tracking number. The Australia Post website records that the mail item with the tracking number used for the Decision was delivered to Mr Bevege’s last known address on Friday, 13 March 2015. I note that the file reveals that Mr Bevege has not provided the Commission with an email address since the filing of his application, and no email address has been used for Mr Bevege previously. I also note that Mr Bevege has changed his address a number of times since the commencement of his application. On 24 April 2014 the Commission file records the following file note:

[3] Mr Bevege has not notified the Commission of any change of contact details since this time, and no correspondence sent following this has been returned to the Commission.

[4] In my Decision of 12 March 2015, after having found that Mr Bevege’s dismissal was harsh, unjust or unreasonable I stated:

[5] No further material has been received from Mr Bevege in response. I also note, as discussed in my decision of 12 March 2015, that this is the third time that Mr Bevege has been directed to file evidentiary material in relation to his earnings.

Relevant legislation

[6] Section 390 of the Act provides:

[7] Further to the findings in my previous Decision, I am satisfied that Mr Bevege was a person protected from unfair dismissal at the time of being dismissed and that he has been unfairly dismissed. Mr Bevege has made an application under s.394 of the Act.

[8] I am satisfied that an order for reinstatement of Mr Bevege is inappropriate on the basis of the material presently before the Commission. As far as the Commission is currently informed, Mr Bevege remains incapacitated for work. 2 Further, and as noted in my previous decision, Mr Bevege’s evidence regarding the way the Respondent, specifically Mr Lambert, treated him during his employment with the Respondent evidences what would be a clear difficulty in repairing the employment relationship.3 At the last Hearing in relation to this matter Mr Bevege also confirmed that reinstatement wasn’t possible and that he was seeking compensation.4

[9] I consider that an Order for the payment of compensation to Mr Bevege would be appropriate in the circumstances of this case, subject to what follows.

[10] Section 392 of the Act provides:

[11] Neither party has filed any evidence in relation to remedy, despite being provided a number of opportunities to do so. I accept that Mr Bevege has at least attempted to assist the Commission at the Hearing of 21 November 2014, but at that Hearing it was made clear to Mr Bevege that exact evidence was required in relation to his earnings, both pre and post dismissal, in order for the Commission to determine any amount of compensation.

[12] In the absence of any specific evidentiary material from the Applicant in relation to his earnings, Mr Bevege has failed to prove his case in relation to loss. Mr Bevege has also failed to establish his exact earnings prior to his dismissal

[13] An order for compensation is discretionary. Notwithstanding my finding that Mr Bevege’s dismissal was unfair, and that reinstatement is not appropriate, I am of the view that the discretion to award compensation should not be exercised in favour of Mr Bevege. Mr Bevege has failed to prove his case in relation to compensation or to file any specific evidentiary material on which the Commission could consider such an order. Mr Bevege has now been provided with a number of opportunities to do so. I am satisfied that he has had a sufficient opportunity to be heard in relation to the matter.

[14] An order dismissing the application will issue concurrently with this decision.

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 1   Bevege v Javelin Transport - Kevin Lambert & Paul Scott T/A Resource Management Group [2014] FWC 268; Bevege v Javelin Transport - Kevin Lambert & Paul Scott T/A Resource Management Group [2015] FWC 1471.

 2   PN95; see also Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 [51].

 3   Bevege v Javelin Transport - Kevin Lambert & Paul Scott T/A Resource Management Group [2015] FWC 1471 at [40] to [41].

 4   PN92 and PN102.

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