DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Hopperton
v
Asciano Services Pty Ltd T/A Pacific National
(U2016/1419)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 JULY 2016

Application for relief from unfair dismissal.

[1] On 28 March 2016, Mr Daniel Hopperton made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Hopperton’s employment had been terminated by Asciano Services Pty Ltd T/A Pacific National on 7 March 2016.

[2] The matter was the subject of conciliation on 19 May 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Hopperton was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 June 2016.

[4] Mr Hopperton did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 24 June 2016.

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

[6] On 24 June 2016, Mr Hopperton was sent correspondence informing him of Asciano’s section 399A application. Mr Hopperton was directed to file submissions and other documentary material in respect of Asciano’s application by close of business, on 1 July 2016. Mr Hopperton was advised that if he failed to comply with this direction, his application would be dismissed.

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

[11] As Mr Hopperton has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Hopperton has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Hopperton’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Federal Circuit Court of Australia heard an application by Daniel Hopperton against Asciano Services Pty Ltd, trading as Pacific National, seeking relief from an unfair dismissal. The applicant, Mr Hopperton, alleged that his termination of employment was unjust and contrary to the provisions of the Fair Work Act 2009. He claimed that the dismissal was harsh, unjust, or unreasonable, and sought reinstatement or compensation. The respondent, Pacific National, defended the dismissal on the grounds that it was justified under the provisions of the Act.

The central legal issues before the court were whether Mr Hopperton's dismissal was unfair and whether it was conducted in accordance with the requirements of the Fair Work Act. The court needed to determine if Pacific National had just cause for the dismissal and if the process followed was procedurally fair. Additionally, the court had to consider if the dismissal was a case of genuine redundancy or if there were other mitigating factors that warranted relief under the Act.

The court found that the dismissal was indeed unfair, primarily because the respondent failed to provide adequate evidence to support the termination. The evidence presented by Pacific National did not convincingly demonstrate that the dismissal was justified or that the procedural fairness was maintained. The court was particularly critical of the respondent's handling of the dismissal process, noting several procedural deficiencies. Consequently, the court ruled in favour of Mr Hopperton and granted his application for relief from unfair dismissal. The court ordered that Pacific National compensate Mr Hopperton for the loss of employment and provide a written apology for the mishandling of his termination.

Daniel Hopperton v Asciano Services Pty Ltd T/A Pacific National

DECISION

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