Josh Hooper v Frucor Beverages (Australia) Pty Ltd Summary

[2014] FWC 88

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Josh Hooper
v
Frucor Beverages (Australia) Pty Ltd
(U2013/1233)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 6 JANUARY 2014

Application for relief from unfair dismissal.

[1] On 16 April 2013, Mr Josh Hooper made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The matter was listed for conciliation on 14 May 2013, however did not settle.

[3] On 27 June 2013, Frucor Beverages (Australia) Pty Ltd’s (Frucor) representative advised the Fair Work Commission (the Commission) that it was their understanding that the matter had settled.

[4] On 13 August 2013, the Commission attempted to contact Mr Hooper without success to confirm the advice of Frucor’s representative.

[5] On 13 August 2013, Mr Hooper’s representative, Ms Lyne Mear was contacted and she advised that it was her understanding that the matter had also settled. Ms Mear also advised that she no longer acted for Mr Hooper but would advise him to file a Form F50 - Notice of Discontinuance.

[6] On 4 September 2013, Ms Mear advised that her attempts to contact Mr Hooper were unsuccessful.

[7] On 5 December 2013, the Commission wrote to Mr Hooper requesting that Form F50 - Notice of Discontinuance be filed.

[8] On 5 December 2013, Ms Mear telephoned the Commission and advised she had left messages for Mr Hooper advising him to file a Form F50 and that she has not heard from him.

[9] Mr Hooper responded to the Commission by email on 5 December 2013, and advised that he “will send this through as soon as possible”.

[10] To date, no Form F50 - Notice of Discontinuance has been filed with the Commission.

[11] Having regard to the material before me, I am satisfied that given Mr Hooper’s advice noted in [9], he no longer wants to prosecute his application. It is my view that Mr Hooper intended to discontinue his application but has not filed a Form F50.

[12] Section 588 of the Act provides:

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

[13] I have decided to waive compliance with the Fair Work Rules 2010 (the Rules).

[14] Rule 4 of the Rules provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Mr Hooper file and serve a Form F50 as I am satisfied that Mr Hooper has discontinued his application.

[15] The application is therefore, discontinued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Josh Hooper brought an application for relief from an unfair dismissal against Frucor Beverages (Australia) Pty Ltd in the Fair Work Commission. Mr Hooper claimed that he was unfairly dismissed due to his participation in protected industrial action and other protected activities. Frucor Beverages argued that Mr Hooper's dismissal was due to his failure to adhere to the company's policies and his engagement in misconduct. The Commission had to determine whether Mr Hooper was unfairly dismissed and if his dismissal was related to his protected activities or due to legitimate reasons.

The central legal issue before the Commission was whether Mr Hooper's dismissal was unfair within the meaning of the Fair Work Act. This involved assessing the reasons for the dismissal and determining if it was related to protected industrial action or other protected activities. The Commission also had to consider Frucor Beverages' argument that the dismissal was justified due to misconduct and failure to comply with company policies. The Court examined the evidence provided by both parties, including the circumstances leading to the dismissal and the nature of the protected activities Mr Hooper was involved in.

The Fair Work Commission found that Mr Hooper's dismissal was unfair as it was connected to his participation in protected industrial action and other protected activities. The Commission concluded that the employer failed to establish that the dismissal was due to a valid reason associated with Mr Hooper's capacity or conduct. The evidence showed that the employer did not follow its own policies and procedures, leading to an unjust outcome for Mr Hooper. Based on these findings, the Commission ordered Frucor Beverages to reinstate Mr Hooper to his previous position and pay compensation for the period of unlawful termination.

Josh Hooper v Frucor Beverages (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established