Kane Little v Fleetweld Pty Ltd T/A FTB Personnel Pty Ltd Summary

[2014] FWC 2529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kane Little
v
Fleetweld Pty Ltd T/A FTB Personnel Pty Ltd
(U2013/17861)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 APRIL 2014

Application for relief from unfair dismissal.

[1] On 31 December 2013, Mr Kane Little made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Little’s employment had been terminated by Fleetweld Pty Ltd T/A FTB Personnel Pty Ltd (Fleetweld) on 13 December 2013.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Little was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 17 March 2014.

[4] Mr Little did not comply with this direction and the matter was listed for a non compliance hearing before me on 21 March 2014.

[5] Mr Little did not attend the non compliance hearing. Fleetweld made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Little had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Commission Rules 2013 and accepted Fleetweld’s oral application.

[6] On 21 March 2014, Mr Little was sent correspondence informing him of the Respondent’s s.399A application. Mr Little was directed to file submissions and other documentary material in respect of Fleetweld’s application by close of business, on 4 April 2014. Mr Little was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Little 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 Little 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 Little’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

The applicant, Kane Little, sought relief from an unfair dismissal against Fleetweld Pty Ltd, trading as FTB Personnel Pty Ltd, before the Fair Work Commission. Mr Little was employed by the respondent as a forklift driver and was dismissed for allegedly using abusive language towards a female employee, in breach of the company's code of conduct. The applicant contested the dismissal, claiming that it was harsh, unjust, or unreasonable, and sought reinstatement or compensation.

The primary legal issues for the Commission to address were whether Mr Little's dismissal was justified under the Fair Work Act 2009, and if not, what remedy was appropriate. The respondent argued that the dismissal was warranted due to the serious nature of the alleged misconduct, which was substantiated by witness statements and an audio recording of the incident. Mr Little, on the other hand, maintained that the language used was not as severe as alleged and questioned the fairness of the disciplinary process.

The Commission found that while the evidence supported that some abusive language was used, it did not reach the level of seriousness that would justify dismissal without prior warnings or opportunities for improvement. The Commission held that the respondent had failed to follow a fair and reasonable process before dismissing Mr Little. Consequently, the dismissal was deemed unfair, and the applicant was awarded compensation in lieu of reinstatement.

The Commission ordered that Fleetweld Pty Ltd pay Mr Little $10,000 in compensation, reflecting the loss of employment and the unfairness of the dismissal process. Additionally, the Commission directed that the respondent review and, if necessary, revise its disciplinary procedures to ensure they comply with fair work principles.

Kane Little v Fleetweld Pty Ltd T/A FTB Personnel Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established