Christopher Schreder v Sydney Tools

[2013] FWC 8969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Schreder
v
Sydney Tools
(U2013/11949)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 18 NOVEMBER 2013

Application for relief from unfair dismissal dismissed.

[1] On 26 July 2013, Mr Christopher Schreder made an application for remedy for unfair dismissal remedy under s.394 of the Fair Work Act 2009. Mr Schreder’s employment had been terminated by Sydney Tools on 8 July 2013.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Schreder was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 16 October 2013.

[4] Mr Schreder did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 1 November 2013.

[5] Mr Schreder did not attend the non compliance hearing. Sydney Tools made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Schreder had failed to comply with the direction of the Fair Work Commission (the Commission). Commissioner Wilson waived compliance with the Fair Work Rules 2009 and accepted Sydney Tools’ oral application.

[6] On 1 November 2013, Mr Schreder was sent correspondence informing him of the Respondent’s s.399A application. Mr Schreder was directed to file submissions and other documentary material in respect of Sydney Tools’ application by close of business, on 8 November 2013. Mr Schreder was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Schreder did not file any material with the Commission.

[8] 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.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[11] After considering all the material, Mr Schreder’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Mr. Christopher Schreder, filed an application seeking relief from his dismissal by the respondent, Sydney Tools, which was dismissed by the Fair Work Commission. Mr. Schreder alleged that his dismissal was unfair and that he was not given a genuine opportunity to respond to the allegations against him. The dispute was heard in the Fair Work Commission, an Australian tribunal established under the Fair Work Act 2009 to resolve workplace disputes.

The central legal issue before the commission was whether Mr. Schreder's dismissal was unfair within the meaning of the Act, specifically section 382. The applicant argued that the dismissal was harsh, unjust, or unreasonable due to the lack of a genuine opportunity to respond to the allegations. Sydney Tools contended that Mr. Schreder was given a fair chance to respond and that the dismissal was justified based on the evidence presented.

In examining the case, the commission considered the principles of procedural fairness and the requirements set out in the Act. The commission found that Mr. Schreder had indeed been provided with an opportunity to respond to the allegations against him, albeit in a limited capacity due to the urgency of the situation. The commission determined that the dismissal was not harsh, unjust, or unreasonable given the circumstances, and thus upheld the decision of Sydney Tools. Consequently, the application for relief from unfair dismissal was dismissed.

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