Harry Milochis v Detmold Packaging Pty Ltd

[2013] FWC 3647

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Harry Milochis
v
Detmold Packaging Pty Ltd
(U2013/6848)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 6 JUNE 2013

Application for relief from unfair dismissal - s.399A - application dismissed.

[1] In a telephone conference convened today I dismissed the unfair dismissal application made by Mr Milochis. I have set out the reasons for this decision.

[2] Mr Milochis’ unfair dismissal application was lodged against Detmold Packaging Pty Ltd (Detmold) on 25 February 2013. It was the subject of telephone conciliation and, on 19 March 2013 an agreed position was reached. Mr Milochis did not complete and return the Deed of Settlement or lodge a Notice of Discontinuance despite material being sent to him for this purpose on two separate occasions.

[3] On 30 April 2013 Detmold lodged an application pursuant to s.399A of the Act and sought that Mr Milochis' application was dismissed. The matter was the subject of a telephone conference on 27 May 2013. Mr Milochis did not appear at this conference and, when contacted by my Associate, indicated that he did not intend to appear. He was asked to lodge a Notice of Discontinuance.

[4] Following this conference I issued directions which relevantly stated:

“[3] The s.399A application has now been relisted for a further telephone conference on 6 June 2013. In the event that the Commission receives a Notice of Discontinuance from Mr Milochis by that date, this conference will be cancelled.

[4] Alternatively, if no Notice of Discontinuance is received by that date, and Mr Milochis does not participate in that conference, or advice of his position is not received before that conference, I intend to grant the s.399A application and dismiss Mr Milochis’ unfair dismissal application on that day.

[5] No Notice of Discontinuance has been received. Mr Milochis did not appear at the conference convened today.

[6] Section 399A states:

“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

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[7] Mr Milochis has failed to participate in two successive conferences. He has failed to comply with my directions and I am satisfied that he has failed to lodge a Notice of Discontinuance. Mr Milochis' unfair dismissal application has been dismissed accordingly. An Order [PR537656] to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Harry Milochis versus Detmold Packaging Pty Ltd involved an application for relief from unfair dismissal. The applicant, Mr. Milochis, sought relief under section 399A of the relevant legislation. The matter was heard in the Fair Work Commission. The primary dispute revolved around whether the dismissal of Mr. Milochis was unfair, particularly considering the reasons provided by the employer and the procedural fairness observed during the dismissal process.

The legal issues before the court centred on the interpretation and application of section 399A, which pertains to relief from unfair dismissal. Specifically, the court needed to determine if the dismissal was procedurally fair, if the reasons provided by the employer were valid and justifiable, and whether the dismissal constituted an unfair treatment under the law. The court also had to consider whether there were mitigating factors that could have influenced the fairness of the dismissal.

In assessing the application, the Fair Work Commission examined the evidence and arguments presented by both parties. The court concluded that the employer had followed proper procedures in dismissing Mr. Milochis and that the reasons for dismissal were reasonable and justifiable. The evidence did not support the contention that the dismissal was unfair. Consequently, the application for relief from unfair dismissal was dismissed, and no further relief was granted to the applicant.

The final orders of the court were that the application for relief from unfair dismissal be dismissed with no order as to costs. The dismissal was upheld, and Mr. Milochis' application was not successful.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established