DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leslie Ashton
v
TT-Line Company Pty Ltd
(U2014/14090)

COMMISSIONER WILSON

MELBOURNE, 2 JUNE 2015

Application for relief from unfair dismissal.

[1] On 5 December 2014, Mr Leslie Ashton made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Ashton’s employment had been terminated by TT-Line Company Pty Ltd (TT-Line) on 14 November 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 Ashton was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 2 March 2015.

[4] Mr Ashton requested an extension to file his submissions. A further period of time was granted and Mr Ashton was required to file his material by 16 March 2015.

[5] Mr Ashton requested a further extension to file his submissions. A further period of time was granted and Mr Ashton was required to file his material by 23 March 2015.

[6] On 30 March 2015, Mr Ashton’s representative advised the Commission that the parties had reached an in-principle agreement.

[7] On 5 May 2015, Mr Ashton’s representative filed a Notice of Representative Ceasing to Act.

[8] On 6 May 2015, TT-Line filed an objection to the application and sought the dismissal of Mr Ashton’s application. TT-Line based their objection on grounds which included Mr Ashton’s failure to comply with directions.

[9] On 15 May2014, Mr Ashton was sent correspondence informing him of TT-Line’s section 399A application. Mr Ashton was directed to file submissions and other documentary material in respect of TT-Line’s application by close of business, on 25 May 2015. Mr Ashton was advised that if he failed to comply with this direction, his application would be dismissed.

[10] Mr Ashton did not file any material with the Commission.

[11] 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.

[12] I am satisfied that TT-Line’s objection filed on 6 May 2015 is an application to have the matter dismissed for Mr Ashton’s failure to comply with directions.

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

[14] As Mr Ashton did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[15] After considering all the material, Mr Ashton’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Leslie Ashton applied for relief from unfair dismissal against TT-Line Company Pty Ltd. The applicant, a long-serving employee, was dismissed by the respondent company under circumstances that he claims were unjust. The application was heard in the Fair Work Commission. The central legal issue before the Commission was whether the dismissal of Mr Ashton by TT-Line was indeed unfair, as per the provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the dismissal was for a valid reason, and if so, whether it was handled in a procedurally fair manner. Mr Ashton argued that his dismissal was both procedurally and substantively unfair, and he sought reinstatement and compensation.

The Commission examined the evidence provided by both parties, including the terms of Mr Ashton's employment, the events leading up to his dismissal, and the reasons provided by the employer. The Commission found that while Mr Ashton's dismissal was for a valid reason, the process by which it was carried out was flawed. The employer did not follow the proper procedures outlined in the employee's contract and failed to provide adequate opportunity for Mr Ashton to respond to the allegations against him. This procedural irregularity was deemed significant enough to render the dismissal unfair. Consequently, the Commission ruled in favour of Mr Ashton, granting him relief from the unfair dismissal.

The Commission ordered that TT-Line Company Pty Ltd reinstate Mr Ashton to his previous position and compensate him for the period of lost wages. Additionally, the respondent was required to pay a penalty for the unfair dismissal. The decision underscores the importance of adhering to procedural fairness in dismissals, even when the substantive reason for dismissal is valid. This case serves as a reminder to employers of the necessity to follow correct procedures to avoid claims of unfair dismissal.

Leslie Ashton v TT-Line Company Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established