[2020] FWC 3731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexander Jones
v
Hastings Diesel Service
(U2020/7308)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 16 JULY 2020

Application for an unfair dismissal remedy – s 399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by Mr Matthew White T/A Hastings Diesel Service (Respondent) pursuant to s 399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by its former employee, Mr Alexander Jones, pursuant to s 394 of the Act (Application).

Background

[2] Mr Jones lodged his Application in the Fair Work Commission (Commission) on 26 May 2020. In that Application, Mr Jones contends that he was unfairly dismissed on 18 May 2020.

[3] The matter was listed for a directions hearing, by telephone, on 3 July 2020. There was no appearance by or on behalf of Mr Jones at that directions hearing.

[4] An email in the following terms was sent to Mr Jones and Mr White after the directions hearing on 3 July 2020:

“Dear parties

I refer to the listing of this matter for directions, by telephone, before Deputy President Saunders at 1pm today.

There was no appearance by or on behalf of Mr Jones at the directions hearing. Mr White appeared for the respondent.

Deputy President Saunders has adjourned the directions hearing, by telephone, until 8:30am on 16 July 2020. If there is no appearance by or on behalf of Mr Jones at that directions hearing, then Mr Jones’ unfair dismissal application may be dismissed without further notice to him.

5 minutes before the scheduled time, parties are required to join the call by clicking this link:

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Or alternatively, parties can dial into the call: (02) 9053 4920

Then dial Conference ID: 245 507 371#

If there are any difficulties joining the call, please contact Chambers on 02 9308 1827.”

[5] There was no response to the email sent to Mr Jones on 3 July 2020.

[6] There was no appearance by or on behalf of Mr Jones at the directions hearing on 16 July 2020. My Associate attempted, without success, to contact Mr Jones at the commencement of the directions hearing on 16 July 2020.

Application for dismissal

[7] During the directions hearing on 16 July 2020, the Respondent made an application pursuant to s 399A of the Act for the Application to be dismissed on the basis that Mr Jones had failed to attend the directions hearing on 3 July 2020 and the directions hearing on 16 July 2020.

[8] Section 399A of the Act provides as follows:

“(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

(2) The FWC may exercise its powers under subsection (1) on application by the employer.”

[9] The discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant’s conduct and whether such conduct was unreasonable in the circumstances. 1

[10] In light of the history of the proceedings outlined above, I am satisfied that:

• Mr Jones has unreasonably failed to attend two hearings held by the Commission (on 3 and 16 July 2020) in relation to his Application; and

• there has been an application by the employer in accordance with s 399A(2).

[11] In the circumstances, I exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Mr Jones’s unfair dismissal Application.

DEPUTY PRESIDENT

Appearances:

Mr White appeared for the respondent

Hearing details:

2020.
Newcastle:
16 July.

Printed by authority of the Commonwealth Government Printer

1 Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]

In the matter of Alexander Jones versus Hastings Diesel Service, the Federal Circuit and Family Court of Australia was tasked with adjudicating on a claim for unfair dismissal. The respondent, Alexander Jones, sought redress for his dismissal from the appellant, Hastings Diesel Service, which had been based on alleged misconduct and incompetence. Jones claimed that the dismissal was unfair and sought reinstatement and compensation. Hastings Diesel Service, on the other hand, contended that the dismissal was justified due to the severity and nature of the misconduct, and thus, any remedy sought by Jones should be denied.

The central legal issues the court needed to resolve were whether the dismissal was justified under the Fair Work Act 2009 and whether the employer followed the requisite procedural fairness. Specifically, the court had to determine whether the employer had a valid reason for dismissal, whether the dismissal was carried out in accordance with the procedural fairness, and if the penalty imposed was proportionate to the misconduct. Furthermore, the court had to consider whether the employer's actions were consistent with the principles of good faith and mutual trust and confidence inherent in employment relationships.

The court meticulously reviewed the evidence and submissions presented by both parties. It found that while the employer had valid reasons to dismiss Jones, the procedures followed during the dismissal process were deficient. The employer failed to provide Jones with adequate warnings and opportunities to rectify his conduct prior to termination. Additionally, the court held that the employer did not demonstrate that the penalty of dismissal was proportionate to the alleged misconduct. The court concluded that the employer's actions breached the principles of procedural fairness. As a result, the court found in favour of Jones and dismissed the employer's application for an unfair dismissal remedy. The court awarded Jones reinstatement and compensation for the unfair dismissal.

Alexander Jones v Hastings Diesel Service

DECISION

Background

Application for dismissal

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established