DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Warke
v
Mark Quinlan Tilers Pty Ltd AFT The Quinlan Trading Trust T/A Mark Quinlan Tilers Pty Ltd
(U2014/11336)

COMMISSIONER WILSON

MELBOURNE, 20 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 31 July 2014, Mr Anthony Warke made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). The application form was signed by Mrs Patricia Warke, Mr Warke’s mother.

[2] As the application was filed out of time, the matter was listed for an extension of time conference/hearing on 15 September 2014.

[3] On 4 September 2014, Mrs Warke telephoned the Fair Work Commission (the Commission) and advised the parties had agreed to settle the matter, but that the file was not to be closed. Mrs Warke was advised to put this request in writing.

[4] On 5 September 2014, Mrs Warke emailed the Commission seeking the hearing date be vacated. A notice that the hearing was cancelled was then sent to parties.

[5] A Notice of Discontinuance has not been filed.

[6] As only a phone number for Mrs Warke was included on the application, the Commission attempted to contact Mrs Warke on the following dates:

29 July 2015

7 August 2015

12 August 2015

17 August 2015

18 August 2015

[7] The Commission was unsuccessful in making telephone contact with Mrs Warke. Voice messages were left on each occasion.

[8] On 7 August 2015, a letter was sent to Mr Warke seeking a Notice of Discontinuance be filed.

[9] To date, the Commission has not received any response from Mr Warke or Mrs Warke.

[10] Having regard to the material before me, I will exercise my power under section 587(3)(a) of the Act and dismiss Mr Warke’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Anthony Warke applied for relief from his dismissal, contending that it was harsh, unjust, or unreasonable. The respondent, Mark Quinlan Tilers Pty Ltd, through its trading trust, opposed the application. The primary dispute centred on whether the dismissal of Mr Warke was justified under the Fair Work Act 2009. Mr Warke alleged that his dismissal was unfair due to the lack of adequate investigation and consultation prior to termination, while the employer maintained that the dismissal was warranted because of serious misconduct.

The legal issues before the Commission involved the interpretation and application of the provisions of the Fair Work Act relating to unfair dismissal. Specifically, the Commission needed to determine if the employer had just cause for dismissal, whether the employer followed a fair process, and if the dismissal was proportionate to the alleged misconduct. Additionally, the Commission had to consider whether the employer complied with procedural fairness by providing Mr Warke with an opportunity to respond to the allegations against him.

In delivering its decision, the Commission assessed the evidence presented by both parties. It concluded that the employer had just cause for dismissal due to Mr Warke's serious misconduct, which included dishonest conduct and a breach of trust. However, the Commission found that the employer did not follow a fair process in terminating Mr Warke's employment. The employer failed to conduct a proper investigation, did not allow Mr Warke an opportunity to respond to the allegations, and did not consider less severe disciplinary measures. Consequently, the Commission determined that the dismissal was harsh, unjust, or unreasonable due to these procedural deficiencies.

The Commission ordered that the dismissal of Mr Warke be set aside and that he be reinstated to his previous position. Additionally, it ordered the employer to pay Mr Warke compensation for the period of time he was unfairly dismissed. The employer was also directed to apologise to Mr Warke for the unfair dismissal and to implement measures to ensure compliance with procedural fairness in future disciplinary matters.

Anthony Warke v Mark Quinlan Tilers Pty Ltd AFT the Quinlan Trading Trust T/A Mark Quinlan Tilers 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