DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Caleb Teika
v
Schmick Auto Detailers
(U2021/510)

DEPUTY PRESIDENT BINET

PERTH, 30 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 20 January 2021, Mr Caleb Teika (Mr Teika) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (Commission) alleging he was unfairly dismissed by Schmick Auto Detailers (Schmick).

[2] On 5 March 2021, Schmick filed a Form F3 - Employer response to unfair dismissal application, raising a jurisdictional objection that the Applicant was not dismissed (Jurisdictional Objection).

[3] The matter was listed for a staff conciliation on 8 March 2021 but Mr Teika failed to participate.

[4] The Application was then allocated to my Chambers for determination.

[5] On 12 March 2021, the parties were issued with directions which required Mr Teika to file and serve on Schmick by 4pm on Friday 19 March 2021 submissions and evidence in relation to the Jurisdictional Objection (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[6] Mr Teika failed to file any materials in accordance with the Directions.

[7] On 22 March 2021 Schmick sent an email to Chambers attaching an application pursuant to section 399A of the FW Act (Dismissal Application). Schmick submitted that the Application should be dismissed pursuant to section 399A on the grounds that Mr Teika unreasonably failed to comply with a direction of the Commission when he failed to file his materials in accordance with the Directions.

[8] On 22 March 2021, Mr Teika was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on 25 March 2021.

[9] No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by 25 March 2021, or by the date of this Decision.

[10] Section 399A of the FW Act provides:

“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

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: for other 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.”

[11] Mr Teika failed to file the materials he was directed to file by the dates specified in the Directions, or at all. Mr Teika failed to seek an extension to file his materials. As at the date of this decision Mr Teika has still not filed any materials in support of his Application or in opposition to the Dismissal Application. I am satisfied that Mr Teika has unreasonably failed to comply with directions of the FWC relating to this Application.

[12] On application of Schmick and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An Order to this effect [PR728159] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Caleb Teika applied to the Fair Work Commission for an unfair dismissal remedy against Schmick Auto Detailers, his former employer. Teika alleged that his dismissal was unjust, occurring due to his refusal to participate in illegal activities, specifically money laundering, which he was asked to do by his employer. The Fair Work Commission was required to determine whether Teika's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

The central issue before the Commission was whether the dismissal was justified and thus fair. The Commission considered whether the refusal to engage in illegal activities constituted a valid reason for dismissal under the circumstances. Teika argued that his termination was a direct consequence of his refusal to participate in illegal activities, and therefore, his dismissal was unfair. On the other hand, Schmick Auto Detailers argued that the dismissal was justified as it was based on a legitimate business reason unrelated to the refusal to engage in illegal activities.

The Fair Work Commission found that the employer's request for Teika to engage in illegal activities constituted a valid reason for dismissal. However, the Commission also found that Teika's refusal to participate in illegal activities was a significant factor leading to his dismissal. The Commission concluded that the dismissal was harsh, unjust, or unreasonable because it was based, at least in part, on the refusal to engage in illegal activities, which was a matter of public interest. The Commission ordered that Teika be reinstated to his former position and awarded him compensation for lost earnings and other related costs.

Caleb Teika v Schmick Auto Detailers

DECISION

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