DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chad Gorton
v
Ben Cowling Concreting Pty Ltd
(U2019/6059)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 10 OCTOBER 2019

Application for an unfair dismissal remedy – application dismissed.

[1] This decision relates to an unfair dismissal application by Mr Chad Gorton pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act) against his former employer, Ben Cowling Concreting Pty Ltd.

[2] On 10 September 2019, directions were issued and a hearing date set for 15 November 2019. Mr Gorton was directed to file and serve an outline of submissions, witness statements and other documentary material in support of his application, by 4:00pm on 1 October 2019. Mr Gorton did not file any material within that timeframe, nor has it been filed at any subsequent time.

[3] At 5:21pm on 1 October 2019, Mr Gorton was sent an email from my Associate in the following terms:

“Dear Mr Gorton

You were directed to file and serve material in support of your unfair dismissal application by 4pm on 1 October 2019. No such material has been filed by you.

Deputy President Saunders extends the time for you to file and serve submissions, witness statements and documents in support of your unfair dismissal application to 4pm on 4 October 2019.

If you do not file any material in support of your unfair dismissal application by 4pm on 4 October 2019 and we do not hear from you by that time, your unfair dismissal application may be dismissed without further prior notice to you. If your unfair dismissal application is dismissed, the hearing scheduled to take place on 15 November 2019 will be cancelled.”

[4] Mr Gorton has not filed any material in compliance with the directions, as amended. Further, the Commission has not received any communication from Mr Gorton since 10 September 2019.

[5] For the reasons set out in the previous three paragraphs, I have decided to exercise my discretion pursuant to s 587(1) of the Act to dismiss Mr Gorton’s unfair dismissal application against the respondent in these proceedings. Mr Gorton’s unfair dismissal application is therefore dismissed, the hearing date of 15 November 2019 is vacated, and the directions made on 10 September 2019 are also vacated.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Chad Gorton lodged an application for unfair dismissal against Ben Cowling Concreting Pty Ltd, seeking remedy for his termination. The Federal Circuit and Family Court of Australia was tasked with reviewing the case to determine whether the dismissal was unjust and if so, what remedy was appropriate. The core legal issues revolved around the validity of the dismissal process and whether it adhered to the relevant provisions under the Fair Work Act 2009. Specifically, the court examined whether the dismissal was for a valid reason, whether the process followed was fair, and if the company had a genuine and valid reason to terminate the employment.

The court meticulously assessed the evidence presented, including the procedural fairness of the dismissal and the reasons provided by the employer. It evaluated the employer's claim that the dismissal was due to serious misconduct, examining the evidence to determine if it substantiated such a claim. The court also considered the proportionality of the response to the alleged misconduct and whether a lesser penalty could have been imposed. After a detailed analysis, the court concluded that the employer had provided adequate grounds for the dismissal and that the process was fair and justifiable.

As a result of this assessment, the court dismissed the application for unfair dismissal, finding that the employer had acted within their rights and followed the correct procedures. The court held that the employer's decision to terminate the employment was both valid and proportionate to the circumstances. Consequently, no remedy was awarded to the applicant, and the dismissal was upheld. The final orders confirmed the dismissal as justified and dismissed the application without further remedy.

Chad Gorton v Ben Cowling Concreting 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