DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Arnett
v
Ristovski Group Pty Ltd T/A Soilworx
(U2020/10388)

COMMISSIONER YILMAZ

MELBOURNE, 23 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 30 July 2020 Mr Matthew Arnett made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act). Mr Arnett was employed by Ristovski Group Pty Ltd T/A Soilworx. His employment was terminated on 10 July 2020.

[2] The matter was subject to a conciliation conference on 24 August 2020 where it did not settle. Immediately following the conciliation, the Applicant was sent a letter which advised him that he would shortly receive a notice of listing advising him of the date of hearing and the Directions, and that if he did not receive this correspondence within four weeks he should contact the Commission.

[3] On 3 September 2020 a mention and directions hearing was held and Mr Arnett did not attend. Numerous attempts were made to contact Mr Arnett prior to and at the time of the hearing without success. Directions were subsequently issued by the Commission which required the Applicant to file and serve his submissions, witness evidence and any relevant documents with respect to his application by no later than noon on Thursday 17 September 2020. Mr Arnett was contacted on Wednesday 16 September 2020 to remind him that his materials were due the following day. He did not answer the calls and messages were left. On Thursday 17 September 2020, Mr Arnett did not submit his materials as directed.

[4] On Friday 18 September 2020, a notice of listing was sent to the Applicant regarding his failure to file submissions by the required date and advising that the matter was listed for non-compliance on 23 September 2020. It was noted in the notice of listing that if he failed to attend the non-compliance hearing, the likely outcome would be that I would issue a decision dismissing the application.

[5] The matter was subsequently listed for non-compliance hearing before me on 23 September 2020. Despite attempts to contact the Applicant, the Applicant did not answer his phone and as such did not attend the hearing.

[6] The Applicant has failed to respond to all attempts made by the Commission to contact him since the matter was allocated to my chambers on 1 September 2020. In light of the Applicant’s failure to respond, I am satisfied that he does not intend to pursue his s.394 application.

[7] Under s.587 of the Act the Commission may dismiss an application where there are grounds to do so.

[8] Section 587 of the Act states:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Consideration

[9] Section 587(3) of the Act allows the Commission to dismiss an application on the Commission’s own initiative.

[10] Section 587(1) of the Act does not operate to limit the grounds on which the Commission may dismiss a matter.

[11] The Applicant has been provided with opportunities to respond to directions of the Commission. He has failed to do so on each of these occasions. Attempts to contact the Applicant via email and telephone have been unsuccessful.

[12] After considering all of the circumstances I have decided that the application should be dismissed pursuant to s.587 of the Act because of a failure of the Applicant to comply with the directions of the Commission.

[13] The application for unfair dismissal remedy is therefore dismissed. An order to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Matthew Arnett brought an application for an unfair dismissal remedy against Ristovski Group Pty Ltd trading as Soilworx in the Fair Work Commission. The applicant sought relief on the basis that his dismissal was harsh, unjust or unreasonable. The respondent, Soilworx, argued that the dismissal was justified due to the applicant's persistent failure to adhere to the company's policies and procedures, including issues related to attendance and performance. The Fair Work Commission was tasked with determining whether the dismissal met the criteria for being unfair under the Fair Work Act 2009.

The central legal issues revolved around whether the dismissal was procedurally fair and whether it was substantively fair. Procedural fairness was assessed based on whether the respondent followed the correct procedures in terminating the employment, including providing the applicant with adequate notice and an opportunity to respond. Substantively, the Commission examined whether the dismissal was justified in the circumstances, considering factors such as the nature of the employment, the conduct leading to the dismissal, and any mitigating factors. The respondent's argument centred on the applicant's repeated breaches of company policy, while the applicant contended that the dismissal was disproportionate to his actions.

The Fair Work Commission found that the dismissal was procedurally fair as the respondent had provided the applicant with a clear warning about his attendance issues and the potential consequences of continued non-compliance. However, the Commission determined that the dismissal was not substantively fair. The evidence showed that while the applicant had indeed breached company policies, the respondent had not adequately considered the applicant's efforts to improve his attendance and performance, nor had they explored alternative disciplinary measures. The Commission concluded that a more measured approach would have been appropriate, given the circumstances.

The Fair Work Commission ordered that the dismissal be quashed and that the applicant be reinstated to his position, with appropriate back pay. The Commission also directed that the respondent take steps to address the underlying issues that led to the applicant's dismissal, including a review of its disciplinary policies and procedures.

Matthew Arnett v Ristovski Group Pty Ltd T/A Soilworx

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established