DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Alsford
v
Doser Freight Forwarding Pty Ltd
(U2015/11179)

DEPUTY PRESIDENT GOOLEY

PERTH, 23 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] On 20 October 2015, Mr Gary Alsford made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Alsford’s employment had been terminated by Doser Freight Forwarding Pty Ltd on 3 August 2015.

[2] The matter was the subject of conciliation however, the matter was not resolved.
Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Alsford was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 19 October 2015.

[4] Mr Alsford did not comply with this direction and the matter was listed for a non compliance hearing before me on 6 November 2015.

[5] Attempts to contact Mr Alsford by telephone on 2 November 2015 and 5 November were unsuccessful.

[6] Mr Alsford did not attend the non compliance hearing. Doser Freight made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Alsford had failed to comply with the direction of the Fair Work Commission. Deputy President Gooley waived compliance with the Fair Work Commission Rules 2013 and accepted Doser Freight’s oral application.

[7] On 6 November 2015, Mr Alsford was sent correspondence informing him of Doser Freight’s section 399A application. Mr Alsford was directed to file submissions and other documentary material in respect of Doser Freight’s application by close of business, on 16 november 2015. Mr Doser was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Alsford did not file any material with the Commission.

[9] Section 399A of the Act 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.

....
(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.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[11] As Mr Alsford did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] After considering all the material, Mr Alsford’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Gary Alsford, sought relief from an unfair dismissal from his employment with Doser Freight Forwarding Pty Ltd. The matter was heard in the Fair Work Commission. The primary issue before the Commission was whether the dismissal of Mr Alsford was harsh, unjust, or unreasonable under section 383 of the Fair Work Act 2009. The dispute arose from allegations that Mr Alsford had engaged in bullying and harassment of a colleague, which led to his termination.

The Commission examined the evidence and submissions from both parties to determine if the dismissal met the threshold for unfairness. Key considerations included the nature of the misconduct, the employer's response, and whether the dismissal was a reasonable management action in the circumstances. The Commission also weighed the fairness of the process followed by the employer in reaching the decision to terminate Mr Alsford's employment.

After considering the evidence and submissions, the Commission found that while the employer had a valid reason to terminate Mr Alsford's employment due to the allegations of bullying and harassment, the process by which the dismissal was carried out was flawed. The employer failed to adequately investigate the allegations or provide Mr Alsford with an opportunity to respond, which rendered the dismissal unjust. Consequently, the Commission ruled that the dismissal was harsh, unjust, or unreasonable.

The Fair Work Commission ordered that the dismissal of Gary Alsford be set aside and that he be reinstated to his former position with Doser Freight Forwarding Pty Ltd. The Commission also directed the employer to compensate Mr Alsford for the loss of wages and entitlements from the date of his dismissal until his reinstatement.

Gary Alsford v Doser Freight Forwarding Pty Ltd

DECISION

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Legal Principle Established