George Fattouche v Melbourne Facades Pty Ltd T/A Melbourne Facades

[2014] FWC 1332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

George Fattouche
v
Melbourne Facades Pty Ltd T/A Melbourne Facades
(C2013/7649)

COMMISSIONER ROE

MELBOURNE, 21 FEBRUARY 2014

Application to deal with contraventions involving dismissal.

[1] On 11 December 2013 the Applicant, Mr George Fattouche, made an application under Section 365 of the Fair Work Act 2009 (the Act) alleging contravention involving dismissal by the Respondent, Melbourne Facades Pty Ltd T/A Melbourne Facades.

[2] The Applicant was dismissed from his employment on 15 November 2013. The 21 day period expired on 6 December 2013. The Applicant contacted Max Legal on 2 December 2013 and was provided with advice as to what to do if he wished to pursue an application in respect to his dismissal. The Applicant contacted Max Legal and provided details on 10 December 2013. There was no representative error as the Application was filed the next day on 11 December 2013.

[3] Evidence in support of the Application for an extension of time was given by the Applicant and by the Applicant’s partner.

[4] The Applicant raised a number of factors in support of a finding of exceptional circumstances including but not limited to the lack of internet access at home, the Applicant’s financial and home circumstances, and the Applicant’s health. The Applicant also raised a number of matters concerning the merits of the Application. For the reasons that I set out on transcript I was not satisfied that exceptional circumstances existed for the granting of an extension of time.

[5] I took all of the factors set out in Section 366 of the Act and the evidence and the submissions of the parties into account in reaching my conclusion that there are no exceptional circumstances warranting an extension of time.

[6] I decline to grant an extension of time. The Application is therefore dismissed and an order to that effect will be published.

COMMISSIONER

Appearances:

Mr T McHugh for the Applicant

Ms R Newman for the Respondent

Hearing details:

2014

Melbourne

21 February

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, George Fattouche, sought an order from the Fair Work Commission to rectify contraventions arising from his dismissal by Melbourne Facades Pty Ltd, trading as Melbourne Facades. The primary issue was whether Melbourne Facades had contravened the Fair Work Act 2009 by dismissing the applicant without a valid reason, and if the dismissal was unfair. The applicant argued that he was dismissed for raising concerns about safety violations, which constituted a protected industrial action, and that the dismissal was harsh, unjust, or unreasonable. Melbourne Facades contended that the dismissal was justified as the applicant was not performing his role properly and had breached company policies.

The Commission considered whether the applicant's dismissal was protected under the Act and if it was procedurally and substantively fair. The evidence showed that the applicant had indeed raised safety concerns, which were protected activities under the Act. The Commission also examined the circumstances surrounding the dismissal, including the applicant's performance and conduct prior to his dismissal. It was determined that the applicant's actions in raising safety issues were a form of protected industrial action. Furthermore, the Commission found that the dismissal was not procedurally fair as the applicant was not given an opportunity to respond to the allegations against him. The substantive fairness of the dismissal was also questioned, given the applicant's role in raising safety issues, which were in the interest of the workplace.

In conclusion, the Fair Work Commission found that Melbourne Facades contravened the Act by dismissing the applicant without a valid reason and that the dismissal was unfair. The Commission ordered Melbourne Facades to reinstate the applicant to his former position and to pay him compensation for the unlawful dismissal. Additionally, Melbourne Facades was required to provide a written apology to the applicant for the unfair treatment he endured. This decision reinforces the importance of protecting employees who engage in protected industrial activities and underscores the need for fair procedures in dismissals.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established