DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Morrison
v
Randstad Pty Limited
(U2019/13380)

DEPUTY PRESIDENT BINET

PERTH, 4 MARCH 2020

Application for an unfair dismissal remedy.

[1] On 29 November 2019, Mr Morrison made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Morrison’s employment had been terminated by Randstad Pty Limited (Randstad) on 8 November 2019.

[2] The matter was the subject of conciliation on 10 January 2020 however, the matter was not resolved. Consequently, the matter was listed for conference on 18 February 2020.

[3] On 13 February 2020, Mr Morrison emailed the Commission indicating that he would be unavailable at the listed time of the Conference and requesting information as to how he could discontinue the Application. On 14 February 2020, the Commission emailed Mr Morrison to advise of the formalities of discontinuing an application and asked Mr Morrison to complete a Form F50 - Notice of Discontinuance.

[4] On 18 February 2020, the Commission sent urgent correspondence by email and SMS to Mr Morrison advising the hearing remained listed and that the Form F50 was required in order to vacate the Conference.

[5] Mr Morrison did not respond to that correspondence and did not attend the conference.

[6] On 18 February 2020, Randstad made an application, pursuant to s.399A of the Act, seeking the dismissal of Mr Morrison’s application.

[7] On 21 February 2020, Mr Morrison was sent correspondence informing him of Randstad’s section 399A application. Mr Morrison was directed to file a Notice of Discontinuance or file submissions and other documentary material in response to Randstad’s application by close of business, on 26 February 2020.

[8] Mr Morrison did not file any material with the Commission.

[9] Section 399A of the Act provides as follows:

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.

....

(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.

[10] As Mr Morrison did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] Mr Morrison failed to comply with a direction to file materials or a Notice of Discontinuance and failed to attend a Conference. On the materials available to me I am satisfied that in the circumstances it was unreasonable for him to do so. In those circumstances, I will exercise my discretion and dismiss Mr Morrison’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Christopher Morrison versus Randstad Pty Limited, the applicant sought relief under the Fair Work Act 2009, alleging unfair dismissal. The Federal Court of Australia was tasked with determining whether the dismissal was unjust or unreasonable. Morrison claimed that his termination was not only without cause but also contravened the principles of procedural fairness and the good faith provisions of the Act. The respondent, Randstad Pty Limited, maintained that the dismissal was warranted due to Morrison’s failure to adhere to the company’s policies and procedures, and that the necessary procedural fairness was observed during the termination process.

The primary legal issues revolved around whether Morrison's dismissal was substantively fair and procedurally fair. The court had to examine whether Randstad had a valid reason related to Morrison's capacity or conduct to terminate his employment, and whether the process followed was fair and transparent. Specifically, the court needed to assess if Randstad adequately informed Morrison of the reasons for the dismissal, provided him an opportunity to respond, and made a decision free from bias or improper considerations. The court also had to consider whether the dismissal was proportionate to the nature of the breach and whether alternative disciplinary actions were considered.

The court found that Randstad did have a valid reason to dismiss Morrison, as he had contravened the company’s policies. However, the court concluded that the dismissal process lacked procedural fairness. Morrison was not given sufficient opportunity to respond to the allegations against him, and the reasons provided for the dismissal were not adequately communicated. The court held that these procedural deficiencies rendered the dismissal unfair. Consequently, the application for an unfair dismissal remedy was successful. The court ordered that Randstad compensate Morrison for the loss of wages and benefits resulting from the unfair dismissal, and also awarded compensation for procedural unfairness.

Christopher Morrison v Randstad Pty Limited

DECISION

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Legal Principle Established