Christian Eaves v Orkin Australia Pty Ltd - [2023] FWC 1047

[2023] FWC 1047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christian Eaves
v

Orkin Australia Pty Ltd

(U2023/1174)

COMMISSIONER WILSON

MELBOURNE, 9 MAY 2023

Application for an unfair dismissal remedy – s.399A application – s.587 application – Applicant sufficiently compliant with Directions of the Commission – s.399A application dismissed – s.587 application dismissed

On 14 February 2023, Mr Christian Eaves (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against Orkin Australia Pty Ltd (Orkin or the Respondent). The application was filed by a paid agent, Just Relations Consultants on behalf of the Applicant.

The parties participated in conciliation on 15 March 2023 but the issues in dispute could not be resolved. Consistent with the Commission’s usual practice on these matters, the matter was referred to me for hearing and determination.

Mr Eaves was directed to file an outline of argument, any witness statements and other documentary material he wished to rely on by 4.00PM AEST Wednesday 12 April 2023 however, no material was received from Mr Eaves by this date. On 6 April 2023, prior to the Applicant’s filing date, his representative filed a notice with the Fair Work Commission (the Commission) advising they ceased to act for Mr Eaves.

On Thursday 13 April 2023 my Chambers wrote to Mr Eaves advising that his application was at risk of being listed for non-compliance and directed that he file his materials that day.

The same day Mr Eaves responded to my Chambers advising that since his representative had ceased to act he did not know how to prepare his case. As a result, I considered it appropriate to issue Amended Directions to the parties and to vacate the hearing date following Mr Eaves notification of the reasons for the non-compliance with the Commission’s Directions. On Friday 14 April 2023 Amended Directions were issued to parties. The Amended Directions required the Applicant to file by 4.00PM Monday 24 April 2023. I advised the parties that once I was satisfied the Applicant had filed by the amended filing date, I would then reset the hearing date.

On 24 April 2023 Mr Eaves filed materials to my Chambers comprising of an email with a link to an audio recording, and eleven attachments. The attachments included Mr Eaves’ account of the incident in January 2023, a document providing Mr Eaves account of incidents in March 2022, August 2022 and December 2022, a document providing Mr Eaves arguments as to why the dismissal was unfair, text message and email exchanges, an instruction manual IND35, a copy of a letter to attend a disciplinary meeting, the termination letter, and transcript of a conversation. A second email was also sent by Mr Eaves concerning his contact with Victoria Police. Mr Eaves failed to provide either communication to the Respondent despite earlier being reminded by my Associate that he must copy the Respondent into any correspondence to my Chambers.

As the Respondent had not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 1047
Decision Date: 9 MAY 2023

CaseChat Overview and Summary

Christian Eaves filed an application for an unfair dismissal remedy against Orkin Australia Pty Ltd under section 394 of the Fair Work Act 2009. The application was made following Eaves' dismissal from his employment as a pest control technician. Orkin dismissed Eaves after receiving a complaint about his conduct towards a 16-year-old employee of one of its clients, which Eaves described as a consensual hug but Orkin viewed as sexual harassment. Orkin subsequently filed applications under sections 399A and 587 of the Act seeking the dismissal of Eaves' application due to his non-compliance with the Commission's directions.

The legal issues before the Commission were whether Eaves had unreasonably failed to comply with the Commission's directions, and whether his application was frivolous, vexatious, or had no reasonable prospects of success. The Commission considered Eaves' repeated failures to follow the Commission's directions, including not forwarding material to Orkin and not providing a genuine outline of argument. However, the Commission also took into account Eaves' lack of familiarity with the Commission's procedures and his difficulties accessing PDF documents containing critical information about his obligations. The Commission found that Eaves' conduct did not warrant dismissal of his application and that there was insufficient material to find the application frivolous, vexatious, or lacking reasonable prospects of success.

The Commission dismissed Orkin's applications under sections 399A and 587 of the Act. Eaves' unfair dismissal application will proceed as scheduled, with Orkin required to file its material by 4:00 PM AEST on Friday, 12 May 2023. A determinative conference/hearing is set for 17 May 2023, with a Member Assisted Conciliation programmed for 16 May 2023 at 3:00 PM AEST.

Orders