DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Johnston
v
Ritchies Stores Pty Ltd
(U2015/1337)

COMMISSIONER WILSON

MELBOURNE, 2 JUNE 2015

Application for relief from unfair dismissal.

[1] On 24 March 2015, Mr Daniel Johnston made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Johnston’s employment had been terminated by Ritchies Stores Pty Ltd (Ritchies) on 5 March 2015.

[2] The matter was the subject of conciliation on 20 April 2015 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Johnston was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 11 May 2015.

[4] Mr Johnston did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 15 May 2015.

[5] On 14 May 2015, Ritchies filed an objection to the application and sought the dismissal of Mr Johnston’s application. Ritchies based their objection on grounds which include failure to comply with directions.

[6] Mr Johnston did not attend the non compliance hearing on 15 May 2015. Ritchies made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Johnston had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Ritchies’ oral application.

[7] On 15 May 2015, Mr Johnston was sent correspondence informing him of Ritchies’ section 399A application. Mr Johnston was directed to file submissions and other documentary material in respect of Ritchies’ application by close of business, on 29 May 2015. Mr Johnston was advised that if he failed to comply with this direction, his application would be dismissed.

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

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

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the court was an application by Daniel Johnston against Ritchies Stores Pty Ltd for relief from unfair dismissal. The applicant, Johnston, was employed by the respondent, Ritchies Stores, and claimed that his dismissal was unfair and contrary to the relevant legislative provisions. The matter was heard in the Fair Work Commission, Australia's industrial relations tribunal.

The legal issues before the court involved the interpretation and application of the Fair Work Act 2009. Specifically, the court had to determine whether Johnston's dismissal was procedurally unfair, whether it was based on invalid reasons, or whether it constituted a case of genuine redundancy. The respondent argued that the dismissal was justified due to Johnston's misconduct and that the process followed was fair and in accordance with the law.

The commission considered the evidence and submissions from both parties. It found that the respondent had failed to follow its own policies in managing the situation leading to Johnston's dismissal. The commission also found that the respondent had not adequately considered alternative options before proceeding with the dismissal. Consequently, the dismissal was deemed to be procedurally unfair. The commission further found that the dismissal was not for genuine redundancy as the respondent had not demonstrated that the position Johnston held was genuinely redundant. Therefore, the application for relief from unfair dismissal was upheld.

The Fair Work Commission ordered that Daniel Johnston be reinstated to his position and that Ritchies Stores Pty Ltd pay compensation for the loss of wages and benefits from the date of dismissal until the date of reinstatement. The respondent was also ordered to pay costs of the application.

Daniel Johnston v Ritchies Stores Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established