DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian Lovett
v
Mary Valley Milk Pty Ltd
(U2016/5079)

COMMISSIONER WILSON

MELBOURNE, 7 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] On 3 March 2016, Mr Brian Lovett made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009.

[2] On 31 March 2016, Mary Valley Milk Pty Ltd filed their response to the application for unfair dismissal remedy.

[3] The matter was the subject of conciliation on 6 April 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing on 23 and 24 June 2016.

[4] Mr Lovett was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 26 April 2016.

[5] On 5 May 2016, Mary Valley’s representative advised the Commission:

“Dear Sir/Madam

I write in relation to the abovementioned matter.

I wish to advise the Commission that this matter has reached an agreement in principle. The Applicant has advised me that he will file a Notice of Discontinuance in due course.”

[6] On 16 June 2016, the Commission forwarded email correspondence to the Mr Lovett and his representative advising that the application remained open and that a Form F50 Notice of Discontinuance was required.

[7] On 23 August 2016, the Commission forwarded the following correspondence to Mr Lovett:

“On 21 June 2016, you advised the Fair Work Commission that the above matter had reached an ‘in-principle’ settlement agreement.

Some time has passed and several requests for you to file a Notice of Discontinuance have been made. However, our records still indicate that a Notice of Discontinuance has not been filed with the Commission.

Please file a Notice of Discontinuance before close of business Tuesday, 30 August 2016 so that we may formally close the file. You can file the Notice of Discontinuance by email at UDTRosters@fwc.gov.au or by post to:
Fair Work Commission
GPO Box 1994
MELBOURNE VIC 3001

To notify the Commission that you wish to discontinue your application, you can also do one of the following:

● call the Unfair Dismissal Case Management Team on 1800 269 491 to discontinue your application by telephone; or
● send a letter, email or fax to the Commission confirming your wish to discontinue.

If the Commission does not hear from you by close of business on Tuesday, 30 August 2016, a decision will be issued by Deputy President Gooley, Termination of Employment Panel Head, to dismiss your matter without further notice to you.”

[8] To date, the Commission has not received a completed Form F50.

[9] Having regard to the material before me, I am satisfied that given Mr Lovett’s advice, that he intended to discontinue his application, but has not filed a Form F50.

[10] Section 588 of the Act provides:

“588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.”

[11] I have decided to waive compliance with the Fair Work Commission Rules 2013.

[12] Rule 6 of the Rules provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Mr Lovett file and serve a Form F50 as I am satisfied that Mr Lovett has discontinued his application.

[13] The application is therefore, discontinued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Brian Lovett brought an application for relief from an unfair dismissal against Mary Valley Milk Pty Ltd in the Fair Work Commission. Lovett claimed that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The employer argued that the dismissal was justified on the grounds of misconduct and incapacity. The Commission was required to determine whether the dismissal was unfair under the Act, considering the employer's justification and the fairness of the process followed.

The central legal issues revolved around whether Mary Valley Milk Pty Ltd had just cause to dismiss Lovett and whether the process followed was procedurally fair. The Commission assessed whether the employer's reasons for dismissal were supported by evidence and whether the employer had followed the correct procedures as mandated by the Fair Work Act. Additionally, the fairness of the dismissal process, including whether Lovett was given a reasonable opportunity to respond to the allegations, was examined.

The Commission found that Mary Valley Milk Pty Ltd had just cause to dismiss Lovett due to his misconduct and incapacity, as evidenced by the employer's submissions and documentation. The employer had followed a procedurally fair process, providing Lovett with multiple opportunities to address the issues raised. Given these findings, the Commission concluded that the dismissal was not unfair. Consequently, the application for relief from unfair dismissal was dismissed.

Brian Lovett v Mary Valley Milk 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