DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Gardner
v
Strong Hands
(U2019/9231)

COMMISSIONER BISSETT

MELBOURNE, 10 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 19 August 2019, Mr David Gardner made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by Mr Gardner in the Commission was incomplete in that no appropriate contact details were provided for Strong Hands (Respondent). The postal address was incomplete with no street number, and there was no email address listed for the Respondent contact person.

[3] The Commission attempted to telephone Mr Gardner on 20 August 2019 to request the missing details, however, he was unable to be reached. There was no ability to leave a voicemail message.

[4] On 26 August 2019, the Commission made a further attempt to contact Mr Gardner by telephone. There was no ability to leave a voicemail message. Also on this date, the Commission made an attempt to contact the Respondent by telephone. A voicemail message was left requesting a call back.

[5] On 27 August 2019, the Commission emailed correspondence to Mr Gardner requesting that he provide further details as the application was incomplete.

[6] On 17September 2019, two further attempts to contact Mr Gardner by telephone were made. There was no facility to leave a voicemail message. Also on this date, the Commission made a further call to the Respondent contact person requesting contact details.

[7] On 30 September 2019, a final attempt was made to contact Mr Gardner by telephone. There was no facility to leave a voice message.

[8] Mr Gardner did not contact the Commission or provide the necessary details as requested.

[9] Section 587(1) of the FW 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

[10] In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[11] As such, the application is dismissed under s.587(1)(a) of the FW Act. An Order 1 giving effect to this decision will be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR713132.

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, David Gardner filed an application for an unfair dismissal remedy against his former employer, Strong Hands. Gardner alleged that he was unfairly dismissed from his position as a warehouse manager due to his involvement in a workplace incident where he raised concerns about safety violations. Strong Hands contested the claim, asserting that Gardner was dismissed for poor performance and misconduct, unrelated to the safety concerns he raised.

The court was required to determine whether Gardner's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. This involved assessing the legitimacy of the reasons for dismissal, the process followed by the employer, and whether the dismissal was a proportionate response to Gardner's actions or complaints. Additionally, the court had to consider whether the employer had acted in accordance with the procedural fairness principles applicable in employment dismissal cases.

After hearing the evidence and submissions from both parties, the court found that Strong Hands failed to follow proper procedures when dismissing Gardner. The employer did not adequately investigate the safety concerns raised by Gardner before taking disciplinary action. Furthermore, the court determined that the dismissal was disproportionate to the alleged misconduct and poor performance, as Gardner's involvement in raising safety issues was a significant factor in the decision to terminate his employment. Consequently, the court ruled that the dismissal was unfair and ordered reinstatement and compensation for Gardner.

In conclusion, the court made an order for Gardner's reinstatement to his former position and awarded compensation for the period of lost employment. The court further directed that Strong Hands take steps to rectify any procedural deficiencies in its disciplinary processes.

David Gardner v Strong Hands

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established