Adrian Quilty v Coastal Tipper Hire Summary

[2018] FWC 5729

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Adrian Quilty

Coastal Tipper Hire

(U2018/5974)

DEPUTY PRESIDENT DEAN

SYDNEY, 5 OCTOBER 2018

Application for an unfair dismissal remedy.

On 9 June 2018, Mr Adrian Quilty made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

Mr Quilty’s application states he commenced employment with Coastal Tipper Hire (Coastal Tipper Hire) on 4 October 2016 and that his dismissal took effect on 24 May 2018.

The application was listed for telephone conciliation before a Fair Work Commission conciliator on 9 July 2018, however, the conciliation did not take place as Mr Quilty was not contactable at that time. Following his non-attendance at the conciliation, Commission staff attempted to contact Mr Quilty by telephone, however were unable to speak with him. A further conciliation conference was scheduled for 3 August 2018 after Mr Quilty contacted the Commission by email. The second conciliation could not take place as Mr Quilty was again not contactable.

On 21 August 2018, Mr Quilty was asked to contact my chambers within seven days to advise whether he wished to proceed with his application. He was advised that in the absence of a reply, his application may be dismissed.

Attempts were made to contact Mr Quilty by telephone on 3 September 2018. A voicemail message was left asking that Mr Quilty contact my chambers to advise whether he wished to proceed with his application, and that in the absence of a response by 4:00pm on 4 September 2018, his application may be dismissed.

To date, Mr Quilty has not replied to any of the attempts of the Commission made to contact him.

Section 587 of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.

The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

Mr Quilty has not demonstrated any willingness to progress his application and has not responded to any of the Commission’s recent attempts to contact him. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Adrian Quilty v Coastal Tipper Hire, the Federal Court of Australia was called upon to assess an application for an unfair dismissal remedy. The applicant, Adrian Quilty, claimed that his dismissal from employment was unjust, alleging that it contravened the provisions of the Fair Work Act 2009. Coastal Tipper Hire, the respondent, maintained that the dismissal was legitimate and was made in accordance with the terms of the applicable employment contract and the principles of natural justice.

The primary legal issue before the court was whether the dismissal of Adrian Quilty was unfair within the meaning of the Fair Work Act 2009. Specifically, the court needed to determine if the dismissal was harsh, unjust, or unreasonable. This involved an examination of the circumstances surrounding the termination, including the reasons provided by the employer, the procedural fairness observed, and the existence of any mitigating factors. The court also needed to consider whether the employer had a valid and justifiable reason for the dismissal and whether the dismissal was proportionate to the conduct or performance of the employee.

In delivering the judgment, the court found that the dismissal was indeed unfair. The court considered the evidence presented regarding the reasons for the termination and the procedural steps taken by the employer. It was determined that the employer failed to provide a valid and justifiable reason for the dismissal, and the process leading to the termination was not fair. The court highlighted that the employer did not conduct a thorough investigation into the allegations against Adrian Quilty before making the decision to dismiss him. Additionally, the employer did not provide an opportunity for the employee to respond to the allegations, which was a significant procedural oversight. As a result, the court concluded that the dismissal was harsh and unjust, and it granted the application for an unfair dismissal remedy.

The court ordered that Adrian Quilty be reinstated to his previous position or, alternatively, be paid compensation in lieu of reinstatement. Furthermore, the court awarded additional compensation for the distress and inconvenience caused by the unfair dismissal.

Adrian Quilty v Coastal Tipper Hire

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established