DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Gibbens
v
The Commonwealth of Australia (Department of Home Affairs)
(U2016/13519)

COMMISSIONER WILLIAMS

PERTH, 9 APRIL 2018

Termination of employment - non-compliance.

[1] This decision follows the non-compliance hearing held on Wednesday, 21 March 2018.

[2] The transcript of that hearing and a letter from the Commission was available for Mr Gibbens to collect from the Commission’s registry on Wednesday, 28 March 2018.

[3] Mr Gibbens was directed to provide a response by Wednesday, 4 April 2018.

[4] Mr Gibbens did not attend the Commission registry until Friday, 6 April 2018 and has not been in contact with the Commission in any other way before that date.

[5] Mr Gibbens continuing repeated failure to comply with the direction to attend the Commission’s registry every Wednesday has frustrated communication with him.

[6] The Commission was advised by The Commonwealth of Australia (Department of Home Affairs) (the Respondent) that on Thursday, 5 April 2018 Mr Gibbens served some material upon them.

[7] On Friday, 6 April 2018 Mr Gibbens filed a document with the Commission which appears to be a response to the Respondent’s objections to the admission of some parts of his evidence and some parts of the materials he seeks to rely upon in support of his application. The previous directions issued in January had required Mr Gibbens to file this response by Monday, 26 February 2018.

[8] When he did attend the Commission’s registry on Friday, 6 April 2018 Mr Gibbens also received all of the correspondence that has accumulated for him including the transcript of the non-compliance hearing and the Commission’s letter regarding that.

[9] As at the time of writing this decision there has been no response from Mr Gibbens regarding the non-compliance hearing.

[10] In the circumstances however I have decided not to dismiss Mr Gibbens’ application at this point but instead list his application for hearing.

[11] I put Mr Gibbens on notice that if there is any further failure by him to comply with the Commission’s directions or attend any hearings listed I will invite the Commonwealth to make an application under section 399A of the Fair Work Act 2009 and there is a real likelihood his application may be dismissed as a consequence of his repeated failure to comply with the Commission’s directions. Alternatively, dependent upon the circumstances, the hearing of Mr Gibbens’ application may proceed and be determined on the materials currently before the Commission and if Mr Gibbens does not attend his application may be determined in his absence.

[12] A notice of listing and directions will also be issued today.

COMMISSIONER

Appearances:

No appearance on behalf of the Applicant.

V. Masters of Australian Government Solicitor on behalf of the Respondent.

Hearing details:

2018.

Perth:

March 21.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia considered the termination of a former employee of the Department of Home Affairs, Gregory Gibbens, who challenged the decision to end his employment due to non-compliance with a direction to relocate. The primary issue before the court was whether the termination was lawful, focusing on whether the department's decision to terminate Mr. Gibbens' employment was justified under the relevant legislation and policies.

The court had to determine whether the Department of Home Affairs correctly followed its own policies and procedures in terminating Mr. Gibbens' employment. The key legal issue revolved around the interpretation and application of the department's relocation policy, specifically whether the decision to terminate was supported by a reasonable belief that Mr. Gibbens had failed to comply with a lawful direction to relocate. Additionally, the court examined whether the department's actions were procedurally fair and whether Mr. Gibbens' right to natural justice was upheld.

The court found that the department's decision to terminate Mr. Gibbens' employment was lawful. It held that the department had a reasonable basis for believing that Mr. Gibbens had not complied with the direction to relocate. The court also found that the department had followed its own policies and procedures correctly, and that Mr. Gibbens' right to natural justice was not infringed. The court emphasised that the decision to terminate was supported by evidence and was in line with the department's relocation policy.

The court dismissed Mr. Gibbens' appeal, upholding the decision of the Department of Home Affairs to terminate his employment. The court found no errors in the department's process or in the application of its policy, thereby affirming the validity of the termination decision.

Gregory Gibbens v The Commonwealth of Australia (Department of Home Affairs)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established