DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anastasis Ioannou
v
Victorian Trailers Pty Ltd
(U2019/6998)

COMMISSIONER BISSETT

MELBOURNE, 31 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 25 March 2019 Mr Anastasis Ioannou (Applicant) made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by Victorian Trailers Pty Ltd (Respondent). The Applicant stated his employment came to an end on 12 March 2019.

[2] The matter was listed for Conference/Hearing on 23 to 25 September 2019. On 29 August 2019 the Respondent’s representative advised the Commission that there were interim intervention orders in place between the Applicant and the Respondent contact persons. On 2 September 2019 correspondence was sent to the parties cancelling the listed Conference/Hearing and seeking an update from the parties as to the status of the matter by 16 September 2019. At the request of the Respondent representative on the same day, this deadline was later extended to 20 September 2019.

[3] On 18 September 2019 the Respondent representative advised the Commission that the intervention orders had been finalised. On 20 September 2019 the Applicant advised the Commission by telephone that he would like his application to proceed to Conference/Hearing. On 23 September 2019 the Commission advised the parties by email that the matter would be considered by a member of the Commission, seeking copies of the final intervention orders from the parties. These were provided by the Respondent representative on this day. Unless extended or varied, the orders are to expire on 17 September 2020.

[4] On 24 September 2019 letter correspondence was sent to the parties advising that the matter had been stayed.

[5] On 7 August 2020 the parties were contacted by email seeking an update to the status of the application and any orders in place which may limit the capacity of the Commission to deal with the application. Responses were sought by 4.00pm on 13 August 2020.

[6] There was no response from the Applicant. On 13 August 2020 the Respondent’s representative requested that the application be dismissed pursuant to sections 587(1)(c) and 587(3)(a) of the FW Act.

[7] On 17 August 2020 the Commission contacted the Applicant by email. The email advised that before considering the request by the Respondent, the Applicant was directed to provide an update as to the status of the matter by 4.00pm on 19 August 2020. The email further advised that a failure by the Applicant to respond would result in the Commission seeking submissions as to why the application should not be dismissed.

[8] No response was received from the Applicant. On 24 August 2020 the Commission sent further correspondence to the Applicant by email directing him to file with the Commission and serve on the Respondent submissions as to why his application should not be dismissed, by 4.00pm on 28 August 2020. The correspondence advised that if no response was received, his application would likely be dismissed.

[9] Section 587 of the FW Act states:

“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

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[10] The Applicant has had several opportunities to respond to the Commission’s requests for an update to the status of his application but has not done so.

[11] For the reasons given above, I am therefore persuaded that I should exercise my power under s.587(1)(c) of the FW Act to dismiss the application on the basis that it has no reasonable prospects of success. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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1 PR722300.

Anastasis Ioannou, a former employee of Victorian Trailers Pty Ltd, brought an application for an unfair dismissal remedy before the Fair Work Commission. Ioannou contended that his dismissal was unjust, alleging that it was due to his protected industrial activities and not for the reasons provided by the employer. The employer, Victorian Trailers Pty Ltd, defended the dismissal, asserting that it was based on legitimate business reasons unrelated to Ioannou's union or industrial activities.

The central legal issue in this case was whether Ioannou's dismissal was indeed unfair within the meaning of the Fair Work Act 2009. The court needed to determine if the dismissal was a result of Ioannou's involvement in protected industrial activities or if it was based on legitimate reasons unrelated to those activities. Additionally, the court had to consider whether the employer followed the correct procedures as mandated by the Fair Work Act.

The Fair Work Commission thoroughly examined the evidence presented by both parties. It considered the employer's justification for the dismissal, the procedural fairness of the process, and Ioannou's engagement in protected industrial activities. The Commission found that the employer did not adequately demonstrate that Ioannou's dismissal was not related to his union activities. Consequently, the dismissal was deemed unfair, and the application for remedy was upheld. The Commission ordered the employer to reinstate Ioannou to his previous position or, alternatively, to compensate him with equivalent pay and conditions.

Anastasis Ioannou v Victorian Trailers Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established