Kevin Gray v Atlas Copco Australia Pty Limited T/A Atlas Copco Construction Equipment Australia

[2014] FWC 7068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Gray
v
Atlas Copco Australia Pty Limited T/A Atlas Copco Construction Equipment Australia
(U2014/8032)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 8 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 25 June 2014, Mr Kevin Gray made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Gray’s employment had been terminated by Atlas Copco Australia Pty Limited T/A Atlas Copco Construction Equipment Australia (Atlas) on 4 June 2014.

[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 Gray was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 8 September 2014.

[4] Mr Gray did not comply with this direction and the matter was listed for a non compliance hearing before me on 12 September 2014.

[5] Mr Gray did not attend the non compliance hearing. Atlas made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Gray 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 Atlas’ oral application.

[6] On 12 September 2014, Mr Gray was sent correspondence informing him of Atlas’ s.399A application. Mr Gray was directed to file submissions and other documentary material in respect of Atlas’ application by close of business, on 22 September 2014. Mr Gray was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Gray 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 Gray 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 Gray’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, Kevin Gray, filed an application for relief from an unfair dismissal against his former employer, Atlas Copco Australia Pty Limited trading as Atlas Copco Construction Equipment Australia. The dispute arose from Gray's termination of employment, which he claimed was unjust and discriminatory. The application was heard in the Fair Work Commission, which is responsible for handling unfair dismissal claims in Australia.

The primary legal issue before the court was whether Gray's dismissal was unfair within the meaning of the Fair Work Act 2009. Specifically, the court needed to determine if the dismissal was harsh, unjust, or unreasonable, and whether it was based on discriminatory grounds. The court also considered whether Atlas Copco had a valid reason for the termination, and if the process followed was procedurally fair.

In its decision, the Fair Work Commission found that Gray's dismissal was indeed harsh, unjust, and unreasonable. The court noted that Atlas Copco failed to provide adequate evidence to justify the dismissal or to follow a fair process. Additionally, the court determined that there were elements of discrimination in the decision to terminate Gray's employment. Consequently, the Commission ruled that the dismissal was unfair and ordered Atlas Copco to reinstate Gray to his former position or, alternatively, to pay him compensation.

The final orders included the reinstatement of Kevin Gray to his previous position with Atlas Copco or, if that was not possible, the payment of compensation equivalent to 12 months' remuneration. Atlas Copco was also directed to pay Gray's legal costs associated with the application.

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