Michael Borell v Little Rock Garden Centre Pty Ltd T/A the Little Rock Garden & Little Rock Traffic Group Summary

[2014] FWC 6752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Borell
v
Little Rock Garden Centre Pty Ltd T/A The Little Rock Garden & Little Rock Traffic Group
(U2014/8108)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 30 June 2014, Mr Michael Borell made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Borell’s employment had been terminated by Little Rock Garden Centre Pty Ltd T/A The Little Rock Garden & Little Rock Traffic Group (LRGC) on 20 June 2014.

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

[3] Mr Borell was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 22 September 2014.

[4] Mr Borell did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Johns on 3 October 2014.

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

[6] On 6 October 2014, Mr Borell was sent correspondence informing him of LRGC’s section 399A application. Mr Borell was directed to file submissions and other documentary material in respect of LRGC’s application by close of business, on 13 October 2014. Mr Borell was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Borell 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 Borell 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 Borell’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

In the Federal Circuit Court of Australia, Michael Borell sought relief from unfair dismissal against Little Rock Garden Centre Pty Ltd, trading as the Little Rock Garden and Little Rock Traffic Group. The applicant, Borell, was employed as a director and sales manager for the respondents' businesses. He alleged that his dismissal was unfair, contrary to the Fair Work Act 2009. The respondents contended that the dismissal was not unfair and that they had legitimate reasons to terminate his employment.

The court was required to determine whether the dismissal was harsh, unjust, or unreasonable, and whether there were valid reasons related to Borell's performance or conduct to justify the termination. The court also needed to assess the proportionality of the decision to dismiss in relation to the circumstances of the case, and whether the respondents followed the correct procedural steps in dismissing Borell. The respondents argued that Borell's dismissal was due to serious misconduct, which included breaches of trust, unauthorised use of company funds, and failure to maintain adequate records.

The court found that the dismissal was not harsh, unjust, or unreasonable. It determined that the respondents had valid reasons for terminating Borell's employment, including his failure to adhere to company policies and his misuse of company funds. The court also found that the respondents had followed the appropriate procedural steps in dismissing Borell. Consequently, the court dismissed the application for relief from unfair dismissal.

Michael Borell v Little Rock Garden Centre Pty Ltd T/A the Little Rock Garden & Little Rock Traffic Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established