DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darcy Leman
v
Tiad Enterprises
(U2020/7610)

COMMISSIONER WILLIAMS

PERTH, 17 JULY 2020

Termination of employment.

[1] This matter involves an application made by Mr Darcy Leman (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is Tiad Enterprises (the Respondent).

[2] The Respondent objects to the application on the ground that the Applicant was not dismissed.

[3] The application was the subject of a conference with a Fair Work Commission (Commission) conciliator however the Applicant was unavailable for the call.

[4] Immediately thereafter on 30 June 2020, the parties were offered a second conciliation and were to request this within two working days. The Applicant was also contacted on his mobile number several times by Commission staff who were unable to leave a voice message. The Applicant did not respond to the offer or contact the Commission.

[5] Correspondence was sent to the parties on 3 July 2020 confirming no contact had been made by the Applicant and so the matter would be referred for arbitration.

[6] Correspondence was sent to the parties again by way of email on 8 July 2020, a letter addressed to the Applicant from my Chambers, noting his non-attendance at the telephone conciliation directing the Applicant to provide written materials in support of the application by 15 July 2020. The directions noted if the Applicant does not comply with the directions the application may be dismissed.

[7] As at the date of this decision the Applicant has not filed any materials as directed nor otherwise contacted the Commission.

The legislation

[8] Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[9] Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Commission must take into account the Objects of the relevant Part of the Act.

[10] A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

[11] The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a "fair go all around" is accorded to both the employer and employee concerned.

[12] Section 587 (3) of the Act empowers the Commission to dismiss an application on its own initiative.

Decision

[13] In this case the Applicant has failed to comply with the Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

[14] The Applicant in the circumstances here has been given a fair go.

[15] The Respondent is also entitled to a fair go including having the claim made against them determined within a reasonable time.

[16] Consequently, my decision is that this application for an unfair dismissal remedy should now dismissed on the initiative of the Commission under section 587 (3) of the Act.

[17] An order [PR721078] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

In the recent decision of Darcy Leman v Tiad Enterprises, the Fair Work Commission was tasked with examining the circumstances surrounding the termination of Darcy Leman's employment. Mr. Leman, an employee of Tiad Enterprises, alleged that his dismissal was unfair and sought redress under the Fair Work Act 2009. The primary dispute centered on whether the employer had just cause to terminate his employment, specifically in relation to allegations of misconduct.

The legal issues at the heart of this case required the Commission to determine whether Tiad Enterprises complied with procedural fairness and whether the termination was justified under the provisions of the Fair Work Act. Key considerations included the employer's adherence to its own policies in addressing the allegations against Mr. Leman, the reasonableness of the employer's decision-making process, and the proportionality of the termination in response to the alleged misconduct. The Commission also had to assess whether Mr. Leman was provided with an adequate opportunity to respond to the allegations before a decision was made.

The Commission found that Tiad Enterprises had not fully complied with procedural fairness, particularly in failing to provide Mr. Leman with a clear and detailed explanation of the allegations against him and an opportunity to respond adequately. The employer's decision-making process was deemed to be flawed, and the termination was found to be disproportionate to the nature of the misconduct. Consequently, the Commission ruled that the termination of Mr. Leman's employment was unfair and ordered that he be reinstated to his former position with back pay. Additionally, the employer was directed to take specific steps to rectify the procedural shortcomings identified during the proceedings.

Darcy Leman v Tiad Enterprises

DECISION

The legislation

Decision

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established