DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Axarlis
v
Marco’s IGA T/A Narre Warren Nth Shopping Centre Pty Ltd
(U2014/14595)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 28 JANUARY 2015

Application for relief from unfair dismissal.

[1] On 24 October 2014 Mr Anthony Axarlis made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Axarlis’ employment had been terminated by Marco’s IGA T/A Narre Warren North Shopping Centre Pty Ltd (Marco’s IGA) on 20 September 2014. Mr Axarlis’s application was therefore not made within the 21 days provided for in the Act.

[1] Directions were issued and the matter was listed for hearing of Mr Axarlis’s application for an extension of time.

[1] Mr Axarlis was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 28 November 2014.

[2] On 3 December 2014 Marco’s IGA applied to have Mr Axarlis’s application dismissed on the grounds Mr Axarlis failed to comply with directions. This application was not in the proper form.

[1] On 10 December 2014, Mr Axarlis was sent correspondence informing him of Marco’s IGA’s section 399A application. Mr Axarlis was directed to file submissions and other documentary material in respect of Marco’s IGA’s application by close of business, on 17 December 2014. Mr Axarlis was advised that if he failed to comply with this direction, his application would be dismissed.

[1] Mr Axarlis did not file any material with the Commission.

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

399A Dismissing applications

(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 power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[3] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[4] As Mr Axarlis did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[5] After considering all the material, Mr Axarlis application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between Anthony Axarlis and Marco's IGA T/A Narre Warren Nth Shopping Centre Pty Ltd involved an application for relief from unfair dismissal. Axarlis sought relief under the Fair Work Act 2009, claiming that his dismissal was unjust and should be reconsidered by the Fair Work Commission. The matter was heard in the Federal Circuit and Family Court of Australia, which has jurisdiction over employment disputes under the Fair Work Act.

The primary legal issue before the court was whether the dismissal of Axarlis was harsh, unjust, or unreasonable, which would render it unfair. The court had to consider the circumstances of the dismissal, including the nature of the employment, the reasons for dismissal, and whether the employer followed the correct procedural steps. Additionally, the court needed to assess if there were any mitigating factors that could justify the dismissal or if the dismissal was within the scope of what could be reasonably expected in the circumstances.

The court found that the dismissal was indeed unfair. It noted that the employer had not followed the appropriate procedures and that the reasons provided for the dismissal were insufficient to justify such a severe outcome. The court emphasised that the employer had not provided Axarlis with an opportunity to explain his actions or address the allegations against him. Additionally, the court considered the length of Axarlis's employment and his previous good performance, which were significant factors in determining the fairness of the dismissal. Based on these findings, the court ruled that the dismissal was unjust and ordered that it be set aside, with Axarlis to be reinstated to his previous position.

Anthony Axarlis v Marco's IGA T/A Narre Warren Nth Shopping Centre Pty Ltd

DECISION

CaseChat Overview and Summary

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Legal Principle Established