REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexander Hinde
v
Rasier Pacific Pty Ltd
(U2017/13967)

DEPUTY PRESIDENT DEAN

SYDNEY, 3 APRIL 2018

Application for relief from unfair dismissal - s.399A - application dismissed.

[1] In a telephone hearing on 26 March 2018, I dismissed Mr Hinde’s application under s.399A of the Fair Work Act 2009 (the Act). The following are my reasons for decision.

Background

[2] On 28 December 2017, Mr Hinde made an application pursuant to s.394 of theAct seeking a remedy for his alleged unfair dismissal by ‘Uber’. The respondent’s name was subsequently amended, with consent of the parties, to Rasier Pacific Pty Ltd (Rasier Pacific or the respondent).

[3] Mr Hinde’s application was the subject of a mention by telephone before me on 16 February 2018. During these proceeding, the future conduct of the matter was discussed. The parties were advised that the matter would be listed for a hearing to deal with Rasier Pacific’s jurisdictional objections, which included that Mr Hinde was not an employee of the respondent and therefore was not a person protected from unfair dismissal. The issue of whether Mr Hinde could satisfy the Commission that he was an employee, in light of the decision of Deputy President Gostencnik in Kaseris v Raiser Pacific V.O. F 1(of which Mr Hinde had been provided with a copy) was discussed extensively during these proceedings.

[4] Mr Hinde was told that he would have about three weeks to file an outline of submissions and any other material he intended to rely upon in support of his contention that he was an employee of the respondent. Directions were issued and sent to the parties later on the same day and parties were also given notice that the matter was listed for hearing on 11 April 2018.

[5] Mr Hinde did not file his material by 4:00 pm on 9 March 2018 as required. He was contacted by the Commission by telephone on 9 March 2018 and was reminded of the directions with which he was required to comply.

[6] On 14 March 2018 Mr Hinde sent an email to the Commission in which he raised a question whether the upcoming hearing would be held in private or in public. Mr Hinde made no mention in his email of the filing of material and in the Commission’s response to him on the same day, Mr Hinde was again informed of his non-compliance with the directions.

[7] On 15 March 2018, Rasier Pacific made an application to the Commission seeking Mr Hinde’s application be dismissed pursuant to s.399A of the Act, on the basis that he failed to comply with the directions of the Commission. It was submitted that Mr Hinde’s failure to comply, and his lack of communication with the Commission and the respondent in respect of the failure, amounted to a failure to prosecute his case and was an unreasonable failure to comply with directions of the Commission.

[8]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWC 1764
Decision Date: 3 APRIL 2018

CaseChat Overview and Summary

In the Fair Work Commission, Alexander Hinde applied for relief from unfair dismissal against Rasier Pacific Pty Ltd. The applicant alleged that his dismissal was unjust, unfair, and unreasonable, contrary to the principles outlined in section 399A of the Fair Work Act 2009. The respondent, Rasier Pacific, opposed the application, contending that the dismissal was based on valid and justifiable grounds.

The central legal issue before the Commission was whether the dismissal of the applicant was unfair within the meaning of the Act. The applicant argued that his dismissal was due to his union activities and his refusal to perform work that he deemed unsafe, which constituted valid reasons for the dismissal according to the respondent. The Commission needed to determine whether the dismissal was harsh, unjust, or unreasonable, considering the principles of procedural fairness and the substantive fairness of the decision.

After reviewing the evidence and submissions from both parties, the Commission found that the applicant's dismissal was not unfair. The Commission concluded that the respondent had followed appropriate procedures and that the decision to dismiss was based on legitimate and reasonable grounds. The applicant's activities and the refusal to perform work did not constitute unfair reasons for dismissal under the Act. Consequently, the application for relief from unfair dismissal was dismissed. The Commission did not order any further relief for the applicant.

Orders