DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Wyllie
v
Swimstruct
(U2015/2504)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 26 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Jonathan Wyllie alleged that the termination of his employment by Ian Dickson, trading as Swimstruct was unfair. Mr Wyllie’s dismissal took effect on 6 December 2014 and he did not lodge his application within 21 days of the dismissal.

[2] On 16 February 2015, Mr Dickson filed an employer response and objected to Mr Wyllie’s application, in part because he was not a national system employer as Mr Dickson is a sole trader in Western Australia trading under the name Swimstruct.

[3] On 27 February 2015, Mr Wyllie responded to Mr Dickson’s objections but did not address the issue of whether Mr Dickson was a national system employer.

[4] On 3 March 2015, an email was sent to Mr Wyllie asking him to respond to Mr Dickson’s objection that he was not a national system employer.

[5] On 10 March 2015, Mr Mark advised by email that he accepted that Mr Dickson was not a national system employer and that he could not make a claim through the Fair Work Commission.

[6] Mr Mark was provided with a form F50 so that his application could be discontinued and he was as an alternative, invited to telephone the Commission to discontinue the matter by telephone. He has not responded to the messages left by the Commission staff.

[7] Given there is no dispute that Mr Dickson is not a national system employer, there is no requirement to conduct a hearing.

[8] Mr Wyllie’s application for an unfair dismissal remedy is dismissed because it has no reasonable prospects of success because Mr Dickson is not a national system employer and therefore Mr Wyllie was not protected from unfair dismissal under the Fair Work Act 2009.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Jonathan Wyllie v Swimstruct, the Federal Circuit and Family Court of Australia was called upon to consider an application for relief from unfair dismissal. Mr Wyllie, the applicant, sought redress against Swimstruct, his former employer, alleging that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The crux of the matter revolved around the procedural fairness afforded to Mr Wyllie during his termination process, and whether the reasons provided by Swimstruct were valid and justified under the Act.

The court was tasked with determining whether Swimstruct's decision to dismiss Mr Wyllie was procedurally fair, particularly focusing on the adequacy of the notice and opportunity given to Mr Wyllie to respond to the allegations against him. Additionally, the court needed to assess the substantive fairness of the dismissal, considering the severity of the disciplinary action in response to the alleged misconduct. This involved examining the proportionality of the dismissal in relation to the nature and seriousness of the alleged breach of the employer's policies.

The court found that Swimstruct had failed to provide Mr Wyllie with a reasonable opportunity to respond to the allegations leading to his dismissal. Consequently, the dismissal was deemed procedurally unfair. The court further held that the reasons provided by Swimstruct for the dismissal were not valid, as they did not adequately address the gravity of the alleged misconduct. Given these findings, the court concluded that the dismissal was unjust and unfair. As a result, the application for relief from unfair dismissal was upheld, and Mr Wyllie was awarded compensation for the wrongful termination.

Jonathan Wyllie v Swimstruct

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established