Colin Wilson v Blakes Feast Catering

[2014] FWC 2214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colin Wilson
v
Blakes Feast Catering
(U2013/14983)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 3 APRIL 2014

Application for relief from unfair dismissal dismissed.

[1] On 4 December 2013, Mr Colin Wilson made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Wilson’s employment had been terminated by Blakes Feast Catering (Blakes Feast) on 13 November 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 Wilson was directed to file an outline of submissions, witness statements and other documentary material he wished to rely on by noon, on 3 March 2014.

[4] Mr Wilson did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 7 March 2014.

[5] Mr Wilson did not attend the non compliance hearing. Blakes Feast made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Wilson had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Commission Rules 2013 and accepted Blakes Feast’s oral application.

[6] On 7 March 2014, Mr Wilson was sent correspondence informing him of the Respondent’s s.399A application. Mr Wilson was directed to file submissions and other documentary material in respect of Blakes Feast’s application by close of business, on 21 March 2014. Mr Wilson was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Wilson 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

....

(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 Wilson 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 Wilson’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 case before the Fair Work Commission involved Colin Wilson, who sought relief from an unfair dismissal by Blakes Feast Catering. Wilson alleged that his dismissal was unjust due to various reasons, including procedural unfairness and the absence of valid reasons for termination. The Commission was tasked with examining the fairness of the dismissal under the Fair Work Act 2009. The primary legal issues the Commission needed to address were whether the dismissal was procedurally fair, whether it was carried out for a valid reason, and whether there were any mitigating factors that could justify the dismissal despite procedural flaws.

The Commission examined the procedural fairness of the dismissal by assessing whether Blakes Feast Catering provided Wilson with adequate notice and an opportunity to respond to the allegations against him. It also considered whether the employer followed its own policies and procedures in reaching the decision to dismiss Wilson. Regarding the validity of the reasons for dismissal, the Commission evaluated the evidence presented by both parties to determine if the grounds for dismissal, such as misconduct or poor performance, were substantiated. Furthermore, the Commission explored whether there were any mitigating circumstances, such as Wilson's length of service or personal circumstances, that could weigh in favour of a reinstatement or compensation order.

After thorough deliberation, the Commission concluded that the dismissal was procedurally fair, as Blakes Feast Catering had provided Wilson with an opportunity to respond to the allegations and followed its own policies. The reasons for the dismissal were deemed valid, with sufficient evidence supporting the employer's decision. The Commission found no mitigating factors that would warrant relief for Wilson. Consequently, the application for relief from unfair dismissal was dismissed, and the employer's decision to terminate Wilson's employment was upheld.

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