[2017] FWC 4279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin McDonald
v
Heavy Duty Plumbing
(U2017/5845)

COMMISSIONER RIORDAN

SYDNEY, 28 AUGUST 2017

Application for an unfair dismissal remedy.

[1] Mr Benjamin McDonald was employed by Heavy Duty Plumbing Pty Ltd, between April 2016 and May 2017.

[2] A Conciliation/Directions Conference was convened on 10 July 2017. Neither Mr McDonald or Heavy Duty Plumbing attended the Conference. In attempting to contact Mr McDonald, my Associate was advised by Mr McDonald’s partner that Mr McDonald wished to withdraw his application and a Notice of Discontinuance would be filed in due course.

[3] My Associate sent Mr McDonald an email on 10 July 2017 advising him that a Notice of Discontinuance was to be filed within 7 days of the email being sent. Mr McDonald did not respond to this email.

[4] My Associate followed up Mr McDonald regarding the Notice of Discontinuance with a phone call on 19 July 2017. He advised that he was unable to discuss the matter at the time and requested another phone call the following day.

[5] My Associate rang Mr McDonald again on 20 July 2017 and advised him of the information that was provided to the Commission by his partner. Mr McDonald was advised that a Notice of Discontinuance would need to be filed if he decided not to proceed with his application or an email should be sent to the Commission advising that he would like to proceed with his application. No correspondence has been received from Mr McDonald.

Relevant Legislation

[6] Section 399A of the Fair Work Act 2009 (Cth)(the Act) states:-

“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

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[7] Section 587 of the 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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

Consideration

[8] Mr McDonald failed to attend the Conference on 10 July 2017. The Commission has received no advice from Mr McDonald as to how he would like to proceed with his application despite an email and telephone discussion with my Associate.

[9] After considering all of the circumstances in this matter, I have decided to dismiss Mr McDonald’s unfair dismissal application in accordance with section 587(3)(a) of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Benjamin McDonald, applied for an unfair dismissal remedy against his former employer, Heavy Duty Plumbing, following his termination of employment. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal. McDonald's application alleged that his dismissal was unjust and that there were grounds for overturning the decision under the Fair Work Act 2009.

The primary legal issue before the Commission was whether McDonald's dismissal was unfair within the meaning of the Act. The Commission needed to consider the procedural fairness of the dismissal, the substantive fairness, and whether there were any valid reasons for the termination that would justify the dismissal. The Commission also needed to consider the proportionality of the dismissal and whether the employer had acted in accordance with the relevant enterprise agreement and applicable awards.

The Commission found that McDonald's dismissal was procedurally unfair due to the employer's failure to provide him with adequate notice and an opportunity to respond to the allegations against him. The Commission further found that the dismissal was substantively unfair as the employer did not have a valid reason to terminate McDonald's employment. The employer's decision to dismiss McDonald was disproportionate to the nature and seriousness of the alleged misconduct. The Commission also found that the employer had not acted in accordance with the relevant enterprise agreement and applicable awards. Accordingly, the Commission ordered that McDonald's dismissal be set aside and that he be reinstated to his former position with back pay.

Benjamin McDonald v Heavy Duty Plumbing

DECISION

Relevant Legislation

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established