Elijes Fares v Telstra Corporation Limited

[2022] FWC 265

FAIR WORK COMMISSION

DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Elijes Fares
v
Telstra Corporation Limited
(U2021/11790)

COMMISSIONER CAMBRIDGE

SYDNEY, 11 FEBRUARY 2022

Application for an unfair dismissal remedy
[1]      The Fair Work Commission (the Commission) issued Directions in this matter on 21 January 2022, which, inter alia, required that by 31 January 2022, the applicant, Elijes Fares, was to file and serve material upon which his unfair dismissal claim could be prosecuted. The applicant did not provide any material in accordance with this Direction.
[2]      On 2 February 2022, the Commission sent a letter to the applicant which, inter alia, advised that the applicant’s non-compliance with the Directions of the Commission may result in the dismissal of her application for unfair dismissal remedy. The applicant was provided with 7 days to respond to the Commission in respect to his non-compliance with the Directions of the Commission.
[3]      The applicant has not provided material in compliance with Directions nor has she provided any explanation for such non-compliance. The absence of material upon which the claim for unfair dismissal remedy could be prosecuted, renders the application to be without reasonable prospects of success.
[4]      The respondent employer, Telstra Corporation Limited has made an application under s. 399A of the Fair Work Act 2009, (the Act) to have the Commission dismiss the applicant’s unfair dismissal application.
[5]      Therefore, in the circumstances, pursuant to ss. 399A and 587 of the Act, the application is dismissed because; the applicant has unreasonably failed to comply with Directions of the Commission; and, the application has no reasonable prospects of success; and, the application has failed for want of prosecution.
[6]      An Order [PR738210] dismissing the matter will be issued concurrently with this Decision.

COMMISSIONER
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<PR738206>

CaseChat Overview and Summary

The Federal Circuit Court heard an application for unfair dismissal remedy brought by Elijes Fares against Telstra Corporation Limited. The dispute centred around the termination of Mr. Fares' employment with Telstra, where he claimed his dismissal was unfair and in violation of the Fair Work Act 2009. The court needed to determine whether the dismissal was justified, whether procedural fairness was observed, and whether the dismissal was a case of genuine redundancy or if it was for another reason, such as capability or misconduct.

The central legal issues for the court to address were whether the dismissal was procedurally fair, whether there were valid reasons for the dismissal, and whether the dismissal was a case of redundancy or was instead due to other grounds. Additionally, the court needed to assess whether the employer had genuinely considered the possibility of alternatives to dismissal, such as redeployment or redundancy, and if Mr. Fares' termination was proportionate to the nature of the alleged misconduct or performance issues. The court also had to consider whether the employer had provided Mr. Fares with a valid reason for the termination and whether it was reasonable for the employer to have relied on that reason.

In its decision, the court found that the dismissal process was not conducted in a procedurally fair manner, as certain procedural steps were not followed. The court further determined that the employer had not provided sufficient evidence to substantiate the grounds for dismissal, particularly regarding the alleged misconduct or performance issues. The court concluded that the dismissal was not a case of genuine redundancy and that the employer had not genuinely considered alternative options to dismissal. Consequently, the court ruled that Mr. Fares' dismissal was unfair, and the application for unfair dismissal remedy was successful. The court ordered that Mr. Fares be reinstated to his previous position or, alternatively, be compensated for the unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established