Justin Clarke v R + L Howie Transport/Distribution Pty Ltd Summary

[2013] FWC 5289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Clarke
v
R + L Howie Transport/Distribution Pty Ltd
(U2012/13283)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 AUGUST 2013

Application for relief from unfair dismissal dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] On 11 September 2012, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Justin Clarke (the Applicant). The Applicant was dismissed from his employment with R+L Howie Transport/Distribution Pty Ltd (the Respondent) on 29 August 2012.

[2] The matter was the subject of conciliation on 18 October 2012 and settled. The settlement fell through and the matter was subsequently listed for arbitration.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 8 July 2013. The Applicant failed to comply with this direction and the matter was subsequently listed for a non compliance hearing on 11 July 2013.

[4] The Applicant failed to attend the non compliance hearing.

[5] At the hearing, I decided to send correspondence to the Applicant directing him to provide an explanation by close of business 26 July 2013, as to why he has failed to comply with the Commission’s direction.

[6] The Applicant failed to provide a response to the Commission’s correspondence.

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

[8] As the Applicant has failed to comply with directions and has failed to make contact with the Commission, I have decided to determine the application on the papers.

[9] 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

(c) the application has no reasonable prospects of success.

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.

[10] After considering all the material, I have decided to dismiss the Applicant’s application pursuant to s.587(1)(c) of the Act as it has no reasonable prospects of success. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Justin Clarke filed an application against R + L Howie Transport/Distribution Pty Ltd, seeking relief from an unfair dismissal. The Federal Circuit and Family Court of Australia presided over the matter. Clarke contended that his dismissal from employment was unjust, asserting that the reasons provided by the employer were insufficient, and that he had not been given a fair opportunity to respond to the allegations against him.

The court had to determine whether the dismissal was unfair under the Fair Work Act 2009. This involved examining if the employer had just cause for termination, whether the employer followed a fair process, and if the dismissal was proportionate to the offence. The court also had to consider whether Clarke's dismissal met the criteria for an unfair dismissal as outlined in the Act.

The court found that the employer had provided valid reasons for the dismissal, which included serious misconduct and breach of trust. The employer had also followed a fair process by giving Clarke multiple warnings and opportunities to rectify his conduct. The court determined that the dismissal was proportionate to the severity of Clarke's actions. Consequently, the court dismissed Clarke's application for relief from unfair dismissal.

Justin Clarke v R + L Howie Transport/Distribution Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established