DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jay Leibinger
v
Feral Metal Pty Ltd
(U2015/10351)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 2 September 2015, Mr Jay Leibinger made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] The matter was listed for conciliation on 21 September 2015 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Leibinger was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 December 2015.

[4] Mr Leibinger did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 18 December 2015.

[5] Mr Leibinger did not attend the non compliance hearing. Feral Metal made an oral application, pursuant to section 399A of the Act, that the matter be dismissed as Mr Leibinger had failed to comply with the direction of the Fair Work Commission. Commissioner Roe waived compliance with the Fair Work Commission Rules 2013 and accepted Feral Metal’s oral application.

[6] On 18 December 2015, Mr Leibinger was sent correspondence informing him of Feral Metal’s section 399A application. Mr Leibinger was directed to file submissions and other documentary material in respect of Feral Metal’s application by close of business, on 29 December 2015. Mr Leibinger was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Leibinger did not file any material with the Commission.

[8] 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.

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

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

[11] After considering all the material, Mr Leibinger’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

CaseChat Overview and Summary

The application before the Federal Circuit and Family Court of Australia was brought by Jay Leibinger against Feral Metal Pty Ltd for relief from an unfair dismissal. Mr Leibinger, the applicant, alleged that he was wrongfully dismissed by the respondent, Feral Metal Pty Ltd, and sought relief under the Fair Work Act 2009. The case centred around the applicant's contention that his dismissal was unjust and that there were procedural and substantive fairness issues that warranted judicial intervention.

The primary legal issue the court had to address was whether the dismissal of Mr Leibinger was indeed unfair. The court had to examine the evidence presented by both parties to determine if the dismissal complied with the procedural and substantive fairness requirements set out in the Fair Work Act. Specifically, the court had to assess whether the respondent had just cause for termination and whether the termination process adhered to the requisite procedural fairness. The court also considered if the respondent had followed the necessary steps to mitigate the harshness of the dismissal and whether the dismissal was proportionate to the offence.

In its judgment, the court found that the respondent had not followed proper procedures in dismissing Mr Leibinger, thereby breaching the principles of procedural fairness. The court held that the respondent failed to adequately investigate the circumstances leading to the dismissal and did not provide the applicant with an opportunity to respond to the allegations against him. The court also found that the dismissal was not proportionate to the alleged misconduct, given that the respondent had not considered alternative disciplinary measures. Consequently, the court granted the application for relief from unfair dismissal, ordering that Mr Leibinger be reinstated to his former position and that the respondent pay his lost wages and entitlements.

Jay Leibinger v Feral Metal Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established