DECISION

Fair Work Act 2009
s.365—General protections

Gregory Williams
v
Pit N Portal Mining Services P/L
(C2021/661)

DEPUTY PRESIDENT BEAUMONT

PERTH, 30 JUNE 2021

Application to deal with contraventions involving dismissal; dismissed pursuant to s 587 of the Fair Work Act 2009.

1 Introduction

[1] Mr Gregory Williams has made a general protections application involving dismissal under s 365 of the Fair Work Act 2009 (the Act). The Respondent to this application is Pit N Portal Mining Services P/L (the Respondent). The matter was allocated to Chambers on 12 April 2021.

[2] The Respondent objected to Mr Williams’ application on the basis that Mr Williams had not been dismissed and remained an employee of the Respondent.

[3] Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal. It requires that the person has been dismissed and that the dismissal was in contravention of the general protections part of the Act (Part 3-1).

[4] On receiving the application, the Commission is obliged to deal with this type of dispute other than by arbitration. 1 It may do this by mediation, conciliation or by making a recommendation or expressing an opinion.2 However, if there is a dispute about whether the applicant has been dismissed, the Commission must first determine that point before it can deal with the application further.3

[5] As there was a dispute over whether Mr Williams had been dismissed, the matter was listed for hearing to determine the issue, and directions were issued.

[6] The directions and a Notice of Listing were issued on 13 April 2021. The matter was listed for a directions hearing, by telephone, at 2.00pm, on Wednesday, 28 April 2021.
[7] Mr Williams did not present for the directions hearing on 28 April 2021. On that same day, Chambers attempted to contact Mr Williams on three occasions between 1.58pm to 2.01pm by telephone. One voice message was left. Mr Williams had not submitted a request for an adjournment. He was subsequently directed to file submissions on why he had not attended the directions hearing listed on 28 April 2021.

[8] Mr Williams responded to the email of 28 April 2021, stating:

I extend my apologies for missing appointment of the 28th April.

My travel south to assist my son in a family matter and the Perth Covid restrictions were a distraction ,and I simply over looked my responsibility to maintain schedule appointments, including a medical appointment.

[9] The matter was relisted for a directions hearing, by telephone, on Tuesday, 4 May 2021, at 12.00pm. Directions were subsequently issued. On 1 June 2021, Mr Williams was informed that he had not complied with the directions which had required him to submit his materials by 4.00pm on 24 May 2021. Eventually, Mr Williams responded to Chambers’ email dated 1 June 2021.

[10] On receipt of the materials from the parties, a conference was convened on 24 June 2021. The purpose of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 3728
Decision Date: 30 JUNE 2021

CaseChat Overview and Summary

The case involved Gregory Williams, an employee, and Pit N Portal Mining Services P/L, the employer. The dispute arose when Williams was dismissed, and he contested the dismissal, arguing it was unfair. The Fair Work Commission, under the Fair Work Act 2009, was the court that dealt with this application. The central legal issues revolved around whether the dismissal complied with the provisions of the Fair Work Act and whether there were any contraventions that warranted intervention by the Fair Work Commission.

The court examined the employer's justification for the dismissal, focusing on whether the dismissal was for genuine operational reasons or if it contravened the Act's provisions. The evidence presented included the employer's rationale for the dismissal, the nature of Williams' employment, and any procedural fairness afforded to him. The court also considered whether the employer acted in accordance with the requirements set out in the Fair Work Act, particularly in relation to procedural fairness and the substantive fairness of the dismissal.

In its reasoning, the court found that the employer had failed to adequately justify the dismissal under the Fair Work Act. The court held that the dismissal was not procedurally fair, as Williams was not given an opportunity to respond to the allegations against him. Additionally, the court determined that the employer did not provide a valid reason for the dismissal that would meet the substantive fairness criteria. As a result, the court ruled that the dismissal was unjustifiable and constituted a contravention of the Act. Consequently, the application to deal with the contraventions involving the dismissal was upheld.

The final orders of the court included a declaration that the dismissal was unfair and unlawful, and it required the employer to reinstate Williams to his position, provide him with back pay, and compensate him for the loss of remuneration. The court further mandated that the employer adhere to the procedural fairness principles in any future disciplinary actions. This decision underscored the importance of fair procedures in employment dismissals under the Fair Work Act.

Orders