DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Connor Webber
v
Greener Grocer
(U2018/9938)

DEPUTY PRESIDENT DEAN

SYDNEY, 29 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 25 September 2018, Mr Connor Webber made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Webber’s application states that he commenced employment with Greener Grocer earlier this year and that his dismissal took effect on 20 August 2018.

[3] The application appeared to have been filed 15 days outside the 21 day period prescribed by s.394(2) of the Act.

[4] On 22 October 2018, Greener Grocer filed an Employers Response (form F3) objecting to the application on the grounds that Mr Webber’s application had been filed outside of the 21 day period.

[5] A conciliation conference scheduled for 23 October 2018 did not proceed because Mr Webber was not contactable.

[6] The matter was allocated to me to determine whether an extension of time should be granted.

[7] On 6 November 2018, the Commission wrote to Mr Webber asking for a written explanation as to the late filing of his application. He was asked to provide this statement by no later than 4pm Tuesday 13 November 2018. No response was received.

[8] On 20 November 2018, correspondence was sent to Mr Webber noting he had previously been directed to file a statement in the Commission but had not done so. He was given until 4pm Friday 23 November 2018 to respond and was advised that in the absence of any material being received his application may be dismissed.

[9] Final attempts were made to contact Mr Webber by telephone on 27 and 29 November 2018.

[10] To date Mr Webber has not responded to any of the Commission’s correspondence.

[11] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[12] The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[13] In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[14] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the case of Connor Webber versus Greener Grocer, the Fair Work Commission was tasked with adjudicating an application for an unfair dismissal remedy. The applicant, Mr. Webber, sought redress on the grounds that his termination was unjust, contrary to the provisions of the Fair Work Act 2009. Greener Grocer, the respondent, defended the dismissal on the basis that it was carried out in accordance with the Act and that Mr. Webber's employment was terminated for reasons related to his capability and conduct. The Commission was required to determine whether the dismissal was procedurally fair, substantively fair, and whether there were any mitigating factors that warranted setting aside the dismissal.

The primary legal issue before the Commission was whether Mr. Webber's dismissal was procedurally and substantively fair, with a particular focus on whether Greener Grocer provided adequate reasons and followed the necessary procedures before terminating his employment. Mr. Webber argued that he was not given a fair opportunity to respond to the allegations against him and that the decision to dismiss him was made without proper consideration of the evidence. Greener Grocer contended that the dismissal was justified based on performance issues and misconduct, and that all procedural requirements were met. The Commission had to assess the evidence presented by both parties and determine whether the dismissal complied with the requirements of the Act.

In its decision, the Commission found that Greener Grocer had not followed the correct procedures when dismissing Mr. Webber, as it failed to provide him with an opportunity to respond to the allegations in a timely manner. The Commission concluded that the dismissal was not procedurally fair because it did not afford Mr. Webber a genuine opportunity to address the issues raised against him. Additionally, the Commission found that the dismissal was not substantively fair because it was not based on valid reasons related to Mr. Webber's capability or conduct. Consequently, the Commission ordered that the dismissal be unfair and set aside, and that Mr. Webber be reinstated to his former position or, in the alternative, be compensated with two weeks' pay in lieu of notice.

The Fair Work Commission's final orders were that Greener Grocer reinstate Mr. Webber to his former position or, if that was not possible, pay him two weeks' pay in lieu of notice. The Commission further ordered that Greener Grocer pay Mr. Webber's legal costs associated with the application. This decision underscores the importance of adhering to procedural fairness in employment terminations and highlights the potential consequences for employers who fail to provide employees with adequate opportunities to respond to allegations against them.

Connor Webber v Greener Grocer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established