DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeffrey Whitehead
v
Circa 1821 Admin Pty Ltd T/A Salamanca Whiskey and Wine Bar
(U2017/1386)

COMMISSIONER LEE

MELBOURNE, 18 MAY 2017

Application for an unfair dismissal remedy - application dismissed.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Jeffrey Whitehead (the Applicant) claims that he was unfairly dismissed from his employment with Circa 1821 Admin Pty Ltd T/A Salamanca Whiskey and Wine Bar (the Respondent).

[2] On 9 February 2017, the Applicant made an application for remedy for unfair dismissal.

[3] On 27 March 2017, the matter was listed for Arbitration Conference/Hearing on 24 May 2017 – 26 May 2017 at the Fair Work Commission (the Commission) in Hobart. Directions were issued for the Applicant to file and serve on the Respondent an outline of submissions and any witness statements and other documentary material the Applicant intends to rely on in support of his application by no later than noon on Tuesday, 18 April 2017.

[4] The Applicant failed to comply with the directions.

[5] The matter was listed for Non-Compliance Hearing by Telephone at 09:30am on 28 April 2017. The Applicant and the Respondent failed to attend the Non-Compliance Hearing. Numerous attempts were made to connect the Applicant and the Respondent by telephone without success and the Non-Compliance Hearing could not proceed.

[6] On 10 May 2017 my chambers sent correspondence to the Applicant advising that in light of the Applicant’s failure to comply with directions of the Commission and failure to attend a hearing of the Commission, the application may be dismissed pursuant to s.587(1)(c) of the Act. The correspondence directed the Applicant to file and serve submissions providing reasons as to why the Commission should not dismiss the application, evidence or other documentary material the Applicant had to support his reasons. The correspondence provided that if material was not filed by close of business Wednesday 17 May 2017 the application for unfair dismissal remedy would be dismissed.

[7] The Applicant did not file any material with the Commission.

[8] Section 587 of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[9] The Applicant failed to file materials in accordance with Directions of the Commission and failed to attend the Non-Compliance Hearing to prosecute his application. When asked by the Commission to provide reasons why the application should not be dismissed, the Applicant did not provide a response or contact the Commission.

[10] I have determined that in light of the Applicant’s failure to prosecute the application, the Applicant’s application has no reasonable prospects of success, and pursuant to s.587(1)(c) of the Act, the application is dismissed.

[11] An order giving effect to this decision has been issued separately in PR592781.

COMMISSIONER

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CaseChat Overview and Summary

Jeffrey Whitehead lodged an application for an unfair dismissal remedy against Circa 1821 Admin Pty Ltd, trading as Salamanca Whiskey and Wine Bar, in the Fair Work Commission. Whitehead claimed his dismissal was unfair due to several reasons, including the absence of a valid reason for termination, the lack of a formal warning, and the failure to provide a reasonable opportunity to respond to the allegations against him. Circa 1821 Admin Pty Ltd argued that the dismissal was fair and justified, asserting that Whitehead had engaged in misconduct and that the company had followed proper procedures in terminating his employment.

The central legal issues before the Commission were whether the dismissal was procedurally fair and whether it was substantively fair. Procedural fairness required the company to provide a valid reason for the dismissal, afford Whitehead an opportunity to respond to the allegations, and ensure that the decision-making process was impartial. Substantive fairness involved determining whether the dismissal was reasonable in the circumstances, considering factors such as the nature of the misconduct, the employer's response, and the employee's employment history.

The Commission found that the dismissal was procedurally fair as the employer had provided a valid reason for the termination, which was consistent with the allegations of misconduct. The employer also gave Whitehead an opportunity to respond to the allegations and provided him with relevant documentation. The decision-making process was deemed impartial, as it was conducted by a manager who was not involved in the investigation. However, the employer failed to provide a formal warning prior to the dismissal, which was a procedural shortcoming. Despite this, the Commission concluded that the overall process was fair enough to meet the requirements of procedural fairness. Regarding substantive fairness, the Commission found that the employer's response was reasonable in the circumstances, considering the nature of the misconduct and the employer's need to maintain a certain standard of behaviour among its employees. The employer also considered Whitehead's employment history and the fact that this was not his first instance of misconduct. Consequently, the Commission determined that the dismissal was substantively fair.

In conclusion, while the employer's failure to provide a formal warning was a procedural shortcoming, it did not outweigh the overall fairness of the dismissal process. The Fair Work Commission dismissed the application for an unfair dismissal remedy, finding that the dismissal was both procedurally and substantively fair.

Jeffrey Whitehead v Circa 1821 Admin Pty Ltd T/A Salamanca Whiskey and Wine Bar

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established