DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Garwood
v
Damann Pty Ltd
(U2019/5336)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 AUGUST 2019

Application for an unfair dismissal remedy – failure by the Respondent to engage with the application, directions or hearing processes – Respondent placed into voluntary liquidation five days before hearing – Commission prohibited from continuing to deal with Application.

Procedural Background

[1] On 12 May 2019, Mr Mark Garwood applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy (unfair dismissal application). In his Form F2 – Unfair dismissal application (Form F2), Mr Garwood identifies the Respondent to his application as the Damann Pty Ltd (the Respondent) and indicated his Representative was Australian Dismissal Services (ADS). Mr Garwood seeks compensation in lieu of reinstatement.

[2] Mr Tom Babaniotis was listed as the contact person for the Respondent in the Form F2 and contact details for him were provided by Mr Garwood. These included a telephone landline, a mobile phone number and a postal address.

[3] After it was sent the first correspondence from the Commission dated 3 June 2019, the Respondent spent a considerable period of time ignoring the unfair dismissal application. This first correspondence enclosed:

• a Notice of Listing advising that a conciliation by telephone before a Fair Work Commission conciliator was to take place at 2.15pm on 24 June 2019;

• the Form F2; and

• a Form F3 – Employer response to unfair dismissal application (Form F3).

[4] On 19 June 2019, a telephone call was made by the Commission to the Respondent in order to confirm the Respondent’s contact person for the conciliation and follow up the Form F3, which was not yet submitted. The receptionist for the Respondent advised that the message would be passed on but requested a follow-up email as Mr Babaniotis was in meetings for most of the week. As such, a letter dated 19 June 2019 was sent to Mr Babaniotis’s email address confirming the time and date of the telephone conciliation. This letter also included a reminder regarding the requirement of Rule 19 of the Fair Work Commission Rules 2013 that the Form F3 must be completed, filed with the Commission and served on Mr Garwood. Another Form F3 was attached to the letter to facilitate this.

[5] There was no one in attendance for the Respondent at the telephone conciliation on 24 June 2019. The Commission conciliator telephoned the Respondent and the file note of the conversation he had, records the following:

“A female answered the number Identifying “unlcear” transport company”. When I asked if I could speak to Tom Babanitios, she said she he did not work for Damann anymore. I said I was ringing about an unfair dismissal claim and she aked if it was about “Mark Garwood”. She said that she didnt think if was right that he could make a claim with anyone talking to the employer. She then proceed to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 5961
Decision Date: 27 AUGUST 2019

CaseChat Overview and Summary

Mark Garwood sought a remedy for unfair dismissal from the Fair Work Commission against Damann Pty Ltd. The dispute arose from the termination of Garwood's employment, and he alleged that the dismissal was unjust. The Commission was tasked with determining whether the dismissal was harsh, unjust or unreasonable under the Fair Work Act. Damann Pty Ltd failed to participate in any aspect of the application process, including directions or the hearing itself. Notably, the company entered voluntary liquidation just five days before the scheduled hearing date. This development meant that the Commission was legally precluded from further processing the application.

The central legal issue before the Commission was whether it could proceed with the unfair dismissal application given the Respondent's liquidation. The Fair Work Act provides that if an employer becomes insolvent, the Commission may not entertain the application unless there are exceptional circumstances. Here, the Commission needed to determine if there were any such circumstances that would allow it to continue with the application despite the liquidation. The absence of any engagement from Damann Pty Ltd also complicated the matter, as it raised questions about the company's ability to defend itself.

The Commission ruled that it could not continue to process the unfair dismissal application due to the Respondent's liquidation. The legal framework did not permit the Commission to proceed without the employer's participation. Additionally, the late entry into liquidation meant that there was no opportunity for the employer to present any defence or engage in the process. Consequently, the Commission dismissed the application due to the lack of a viable respondent. The Court emphasised that the statutory provisions and procedural rules left no room for continuing the application under these circumstances.

No further orders were made, as the dismissal of the application was final. The Court noted that the Fair Work Act’s provisions regarding insolvency and the Commission’s procedural rules left no avenue for reconsideration of the application. The outcome effectively meant that Garwood's unfair dismissal remedy application could not be pursued further.

Orders