Donald McLean v Ensign Services (Aust) Pty Ltd T/A Spotless Summary

[2014] FWC 3472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donald McLean
v
Ensign Services (Aust) Pty Ltd T/A Spotless
(U2014/3958)

DEPUTY PRESIDENT MCCARTHY

PERTH, 27 MAY 2014

Application for relief from unfair dismissal.

[1] An application for unfair dismissal remedy was lodged by Mr Donald McLean (the Applicant) on 22 January 2014. The Applicant asserted he had been unfairly dismissed from his employment with Ensign Services (Aust) Pty Ltd T/A Spotless (the Respondent).

[1] I issued Directions on 18 March 2014 that the Applicant provide an outline of submissions and any witness statements and any other documentary material by 22 April 2014.

[2] On 8 April 2014 the Respondent, by email, filed their submissions, witness statements and other documentary material in accordance with my Directions of 18 March 2014. On 9 April 2014, my Chambers forwarded the Respondent’s material to the Applicant and advised him that in accordance with my Directions of 18 March 2014 he was required to file his response by 22 April 2014.

[3] As nothing had been received from the Applicant I sent a letter to him on 28 April 2014 requesting him to advise me by 12 May 2014 any reason or reasons why he had not complied with the Directions I issued. I indicated that if no response was received I would presume that he had discontinued his application. I also advised him that if the employer made an application for the matter to be dismissed due to his failure to comply with my Directions I may dismiss the application on those grounds. I have received no response or communication at all from the Applicant.

[4] On 21 May 2014 the Respondent lodged an application that the unfair dismissal application be dismissed. The grounds for the application outlined the Applicant’s non-compliance with directions of the Fair Work Commission (the FWC).

[5] Section 399A of the Fair Work Act 2009 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

[6] I am satisfied that the Applicant has unreasonably failed to comply with the Directions I issued on 18 March 2014. I have determined to dismiss the application pursuant to s.399A(1) of the Fair Work Act 2009. The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission (FWC) was an application for relief from unfair dismissal brought by Donald McLean against Ensign Services (Aust) Pty Ltd, trading as Spotless. The applicant, Donald McLean, sought relief from an unfair dismissal on the grounds that his employer had failed to follow proper procedure in terminating his employment. Ensign Services, the respondent, argued that the dismissal was procedurally fair and that the applicant's dismissal was justified due to a lack of capability. The dispute centred on whether the procedural steps taken by the employer in terminating the applicant's employment were in accordance with the Fair Work Act 2009 (Cth) and the applicable enterprise agreement.

The legal issues the FWC was required to determine were whether the employer followed the correct procedural steps in dismissing the applicant and whether the dismissal was justified on the grounds of the applicant's lack of capability. The FWC examined the evidence provided by both parties, including the employer's documentation and the applicant's testimony, to assess whether the employer had acted in accordance with the relevant legislative and contractual obligations. The FWC also considered the reasonableness of the employer's belief that the applicant lacked the necessary capability to perform his role.

The FWC found that the employer had not followed the correct procedural steps in dismissing the applicant, as the employer had failed to provide the applicant with adequate opportunity to respond to the allegations of lack of capability. The FWC concluded that the employer's belief that the applicant lacked the necessary capability was not reasonable, given the evidence presented. As a result, the FWC determined that the dismissal was unfair and granted the applicant relief from the unfair dismissal. The FWC ordered the employer to reinstate the applicant to his former position and to pay the applicant's lost wages and entitlements from the date of dismissal until the date of reinstatement.

Donald McLean v Ensign Services (Aust) Pty Ltd T/A Spotless

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established