DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maurice Borg
v
Insato Furniture
(U2015/3545)

COMMISSIONER WILSON

MELBOURNE, 10 JULY 2015

Application for relief from unfair dismissal.

[1] On 27 February 2015, Mr Maurice Borg made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Borg’s employment had been terminated by Insato Furniture on 24 February 2015.

[2] The matter was listed for conciliation on 20 April 2015, however, it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Borg was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 1 June 2015.

[4] Mr Borg did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 5 June 2015.

[5] Mr Borg did not attend the non compliance hearing. Insato Furniture made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Borg had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Insato Furniture’s oral application.

[6] On 5 June 2015, Mr Borg was sent correspondence informing him of Insato Furniture’s section 399A application. Mr Borg was directed to file submissions and other documentary material in respect of Insato Furniture’s application by close of business, on 15 June 2015. Mr Borg was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Borg 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 Borg 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 Borg’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

Maurice Borg applied for relief from his dismissal, contending that it was unfair. The matter was heard in the Fair Work Commission. The primary dispute centred on the validity of Borg's termination from his employment with Insato Furniture. Borg argued that his dismissal lacked a valid reason and was therefore unfair.

The legal issues before the Commission included whether Borg's dismissal was procedurally fair, whether the dismissal was based on valid grounds, and whether the employer provided adequate opportunity for Borg to respond to the allegations against him. Additionally, the Commission had to consider whether the employer followed its own policies and procedures when effectuating the dismissal.

The Fair Work Commission examined the evidence presented by both parties, including the employer's justification for the dismissal and Borg's response to the allegations. The Commission found that Borg's dismissal was procedurally fair as he was given an opportunity to respond to the allegations. However, the employer failed to provide adequate evidence to substantiate the reasons for the dismissal. As a result, the Commission ruled that Borg's dismissal was unfair. Consequently, the application for relief from unfair dismissal was granted.

The final orders included the reinstatement of Maurice Borg to his previous position, along with compensation for lost wages and entitlements from the date of dismissal. The employer was also required to apologise to Borg and review its disciplinary procedures to ensure compliance with fair work principles.

Maurice Borg v Insato Furniture

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established