Kristian McKenzie v Emerald Grain Pty Ltd T/A Emerald Grain

[2014] FWC 7100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristian McKenzie
v
Emerald Grain Pty Ltd T/A Emerald Grain
(U2014/10610)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 8 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 4 July 2014, Mr Kristian McKenzie made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr McKenzie’s employment had been terminated by Emerald Grain Pty Ltd T/A Emerald Grain on 13 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 McKenzie 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 McKenzie did not comply with this direction and the matter was listed for a non compliance hearing before me on 12 September 2014.

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

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

[7] Mr McKenzie 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 McKenzie 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 McKenzie’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

CaseChat Overview and Summary

In the matter of Kristian McKenzie against Emerald Grain Pty Ltd trading as Emerald Grain, the applicant sought relief from an unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with assessing the application, which arose from an employment dispute. McKenzie claimed that his dismissal from Emerald Grain was unjust and contrary to the principles outlined in the Fair Work Act 2009. The central issue before the court was whether the dismissal was indeed unfair, given the employer's asserted grounds of poor performance and conduct. The court had to determine the legitimacy of the employer's decision to terminate the employment, weighing the employer's evidence against McKenzie's defences.

The court examined the procedural fairness of the dismissal process and the substantive fairness of the decision itself. It considered whether Emerald Grain complied with the necessary steps to ensure a fair dismissal, including providing adequate warnings and opportunities for improvement. The court also evaluated the employer's justification for the dismissal, focusing on whether the alleged poor performance and conduct warranted such a severe action. Additionally, the court assessed the proportionality of the dismissal in relation to the severity of the issues raised by the employer. The applicant's arguments centred on procedural shortcomings and the contention that the employer's decision lacked substantive justification.

After considering the evidence and submissions from both parties, the court concluded that the dismissal was procedurally flawed, as the employer did not provide sufficient warnings and opportunities for improvement. The court found that the employer's decision to terminate the employment was not proportionate to the issues raised, and the process lacked substantive fairness. Consequently, the court granted the applicant's application for relief from unfair dismissal, finding that the dismissal was unjust. As a result, the court ordered that the dismissal be set aside and that McKenzie be reinstated to his position with back pay.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established