[2016] FWC 1714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Gail Hull
v
Nova 5 Group T/A AJM Transport
(U2015/14910)

COMMISSIONER SAUNDERS

NEWCASTLE, 18 MARCH 2016

Application for relief from unfair dismissal

Introduction

[1] Ms Gail Hull was employed by Nova 5 Group trading as AJM Transport (AJM). She was based in the Newcastle region. Ms Hull alleges that she was dismissed by AJM on about 28 October 2015, and that her dismissal was harsh, unjust and unreasonable. These allegations are denied by AJM.

History of proceedings

[2] Ms Hull filed her unfair dismissal application in the Fair Work Commission (the Commission) on 6 November 2015.

[3] Following an unsuccessful conciliation on 10 December 2015, directions were made on 8 January 2016 for the parties to file and serve outlines of submissions, witness statements, and other documentary material. The directions also gave notice to the parties that the matter had been listed for hearing in Newcastle, which was the hearing location nominated by both parties at the conciliation.

[4] In an email dated 1 February 2016, Ms Hull provided her “statement” in support of her claim. In that email, Ms Hull stated, among other things, “I can’t afford to go to court in Newcastle so I’d like it to be transferred to Griffith court”.

[5] AJM filed its “statement” and documentary material in the Commission on 22 February 2016.

[6] On 29 February 2016, the matter was listed for directions by telephone to deal with the application by Ms Hull to have the location of the hearing moved from Newcastle to Griffith. There was no appearance by or on behalf of Ms Hull at that directions hearing. Mr Anthony Mansell, a director of AJM, appeared on behalf of AJM at the directions hearing on 29 February 2016. Mr Mansell opposed any transfer of the location of the hearing from Newcastle to Griffith on the basis that Ms Hull was based in Newcastle when she was employed by AJM and AJM’s witness in the proceedings was also based in Newcastle.

[7] After the directions hearing on 29 February 2016, my Associate sent an email in the following terms to the parties at 10:44am on 29 February 2016:

“Dear Ms Hull and Mr Mansell

This matter was listed for directions by telephone at 10:00am today, Monday 29February 2016, before Commissioner Saunders. A notice of listing was emailed to the parties on Friday, 26 February 2016.

Mr Mansell appeared for the respondent and there was no appearance by or on behalf of the applicant. The Commission attempted to contact Ms Hull a number of times on her mobile number however there was no answer.

Further to the directions hearing this morning, the Commissioner has advised that this matter would remain listed for arbitration conference/hearing in Newcastle at 10:00am on Friday, 18 March 2016.

If Ms Hull would like to make an application to have the matter heard elsewhere she should do so in writing as soon as possible.”

[8] The email referred to the previous paragraph was sent to Ms Hull at the email address provided by her in her application filed in the Commission on 6 November 2015. Ms Hull also used that email address to file her “statement” on 1 February 2016.

[9] The Commission has not received any communication from Ms Hull since she filed her “statement” on 1 February 2016.

[10] The matter was called on for hearing in Newcastle at 10:00am on Friday, 18 March 2016. Mr Mansell appeared for AJM. There was no appearance by or on behalf of Ms Hull. The matter was then called three times outside the hearing room, to which there was no response.

[11] I then adjourned the proceedings for a short time to enable my Associate to attempt to contact Ms Hull by telephone. My Associate was unable to make any contact with Ms Hull by telephone.

[12] The matter was then called back on and Mr Mansell informed the Commission that he wished to apply for the dismissal of Ms Hull’s application for relief from unfair dismissal.

Application for dismissal

[13] Section 399A of the Fair Work Act 2009 (Cth) (the Act) provides as follows:

“(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 order of the FWC relating to the application; or

(2) The FWC may exercise its powers under subsection (1) on application by the employer.”

[14] In light of the history of the proceedings outlined above and the failure of Ms Hull to attend the hearing on 18 March 2016, I am satisfied that Ms Hull has unreasonably failed to attend a hearing held by the Commission, in relation to her unfair dismissal application. I therefore exercise my discretion pursuant to section 399A(1) of the Act to dismiss Ms Hull’s unfair dismissal application.

COMMISSIONER

Appearances:

No appearance by or on behalf of the applicant;

Mr A Mansell on behalf of AJM.

Hearing details:

2016.

Newcastle:

March, 18.

Printed by authority of the Commonwealth Government Printer

The Federal Circuit Court was asked to determine whether the applicant, Ms Hull, was unfairly dismissed from her employment by the respondent, Nova 5 Group T/A AJM Transport. The court was required to consider the various arguments presented by both parties regarding the validity of the dismissal and whether it was unfair under the Fair Work Act 2009. Ms Hull claimed that her dismissal was unjust and sought relief from the court. Nova 5 Group T/A AJM Transport argued that the dismissal was warranted due to Ms Hull's misconduct and was not unfair.

The central legal issue the court had to decide was whether the dismissal of Ms Hull was justified under the Fair Work Act 2009. Specifically, the court needed to assess whether the employer had a valid reason related to the employee's capacity or conduct for terminating the employment, and whether the dismissal was procedurally fair. The court also had to consider whether the dismissal was a case of harsh, unjust, or unreasonable treatment, and if it constituted a genuine redundancy. The respondent argued that the dismissal was justified due to Ms Hull's misconduct, while the applicant contended that the process was unfair and the decision unjustified.

After carefully reviewing the evidence and submissions from both parties, the court determined that the dismissal of Ms Hull was unfair. The court found that the employer did not follow a fair process in reaching the decision to dismiss Ms Hull, and the reason provided for the dismissal was not substantiated. The court was particularly critical of the lack of investigation into the allegations of misconduct and the failure to provide Ms Hull with an opportunity to respond to the allegations before the decision was made. The court concluded that the dismissal was unjust and ordered the respondent to pay Ms Hull compensation for the unfair dismissal. The exact amount of compensation was left to be determined in further proceedings.

Gail Hull v Nova 5 Group T/A AJM Transport

DECISION

Introduction

History of proceedings

Application for dismissal

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established