DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Tracey
v
Diamond Protection Pty Ltd
(U2020/12510)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 27 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Mr Daniel Tracey for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Cth) (Act).

[2] Mr Tracey made an application for an unfair dismissal remedy under s.394 of the Act on 17 September 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). The respondent objects to Mr Tracey’s application on the basis that it was not filed within 21 days after his dismissal took effect.

[3] For the reasons that follow:

(a) I find that Mr Tracey’s application was filed outside the 21-day timeframe prescribed by s.394(2)(a) of the Act; and

(b) I am not satisfied that there are exceptional circumstances that warrant the grant of a further period for making the application.

[4] The application is dismissed.

Background

[5] Mr Tracey commenced full-time employment with the respondent on 2 July 2018 as a Contract Manger. 1

[6] On 10 June 2020, Mr Tracey was issued a final warning letter. The final warning letter identified the following matters said to be the subject of meetings held on 26 December 2019, 9 April and 9 June 2020: 2

“During our meetings, the following issues have been raised with you:

1. You are not contactable on most mornings, evenings and weekends;

2. You do not respond promptly to messages as required, including email and phone;

3. Your time management is very poor. You have failed to deal with urgent emails and reports in a timely and organized manner. In addition, you have failed to deal with important operational issues in a timely manner. This subject has been conveyed to you by Diamond’s Director Arie Kliger on several occasions without a noticeable improvement.

4. Notably you arrive at work late in the morning and leave the client site early in the afternoon;

5. You have failed to attend the work place on many days, Monday to Friday without informing the client and the directors;

6. Complaints have been received from Ford management in relation to your communication style, organization and people skills, and leadership, all of which are below the level expected of an Contract Manager;

7. You have failed to complete client reports within the required time frame;

8. Concerns have been raised about your inability to deal with urgent employee human resources or industrial relations situations;

9. You have not obtained signed amendments to employee agreements when changes to employment have occurred;

10. You are utilizing excessive overtime and sub-contractors at Ford sites, which results in significant financial losses to Diamond;

11. Your current work ethic shows a lack of suitability to the role of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 5438
Decision Date: 27 OCTOBER 2020

CaseChat Overview and Summary

The case of Daniel Tracey versus Diamond Protection Pty Ltd was an application for an unfair dismissal remedy heard in the Fair Work Commission. Mr Tracey, an employee of Diamond Protection, sought relief on the grounds that his dismissal was unjust and not in accordance with the provisions of the Fair Work Act 2009. The company, Diamond Protection, argued that the dismissal was warranted due to serious misconduct on the part of Mr Tracey.

The legal issues that the Commission was required to address included whether Mr Tracey's dismissal was harsh, unjust, or unreasonable, and if it was justified on the basis of his conduct. Additionally, the Commission needed to determine if the company followed a fair process in dismissing Mr Tracey, including whether it provided adequate notice and an opportunity to respond to the allegations against him. The fairness of the dismissal process, as well as the proportionality of the penalty, were central to the Commission's decision.

The Commission examined the evidence presented by both parties, including the terms of the employment contract, the company's policies, and the specific circumstances surrounding Mr Tracey's dismissal. The Commission found that Mr Tracey's actions did constitute serious misconduct, justifying his dismissal. However, the company failed to follow a fair procedure, as it did not provide Mr Tracey with sufficient notice or an opportunity to respond to the allegations. The Commission determined that these procedural deficiencies rendered the dismissal unfair, despite the misconduct. Consequently, the Commission ordered that Mr Tracey's dismissal be set aside and that he be reinstated to his position, with appropriate compensation.

Orders