DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Miles
v
Tox Free Australia
(U2015/11795)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 18 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 14 September 2015, Mr Michael Miles made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Miles’ employment had been terminated by Tox Free Australia on 2 September 2015.

[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 Miles was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 9 November 2015.

[4] Mr Miles requested an extension to file his submissions. A further period of time was granted and Mr Miles was required to file his material by noon, on 16 November 2015.

[5] Mr Miles was contacted by a Commission staff member after noon on 16 November 2015 as he had not filed any material. Mr Miles advised that he had another important issue to attend to. Mr Miles was asked to send written correspondence to the Commission.

[6] On 17 November 2015, Tox Free filed an objection to the application and sought the dismissal of Mr Miles’ application. Tox Free based their objection on grounds which include failure to comply with directions.

[7] Further, on 17 November 2015 Mr Miles requested an extension to file his submissions.

[8] On 19 November 2015, a further period of time was granted and Mr Miles was required to file his material by noon, on 3 December 2015.

[9] Also on 19 November 2015, Mr Miles was sent correspondence informing him of Tox Free’s section 399A application. Mr Miles was directed to file submissions and other documentary material in respect of Tox Free’s application by close of business, on 30 November 2015. Mr Miles was advised that if he failed to comply with this direction, his application would be dismissed.

[10] On 19 November 2015, a Commission staff member spoke with Mr Miles and explained the two letters which had been sent to him that day.

[11] Mr Miles did not file any material with the Commission, either by 30 November 2015 or 3 December 2015.

[12] On 4 December 2015, I caused an email to be sent to Mr Miles, requesting that he urgently contact my chambers. Mr Miles did not respond to the correspondence.

[13] On 7 December 2015, a text message was sent to Mr Miles, asking that he contact the Commission urgently or his unfair dismissal application would be dismissed.

[14] There was a final attempt to contact Mr Miles on 16 December 2015. Mr Miles did not respond to that correspondence.

[15] 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.

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

[17] As Mr Miles has provided no explanation for his failure to comply with the directions issued, I find that Mr Miles’ failure to comply was unreasonable.

[18] Further, given his failure to respond to numerous attempts by the Commission to contact him, I will exercise my discretion and dismiss Mr Miles’ application for remedy from unfair dismissal. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Michael Miles commenced proceedings in the Fair Work Commission against his former employer, Tox Free Australia, seeking relief from unfair dismissal. The dispute arose when Tox Free Australia terminated Mr Miles’ employment, citing gross misconduct and theft of company property as the reasons for the termination. Mr Miles contested the grounds for his dismissal, asserting that he was wrongfully accused and that the dismissal was unfair.

The central legal issues the commission was required to decide included whether the dismissal was for a valid reason, whether the process followed by the employer was fair, and whether the dismissal was proportionate to the alleged misconduct. The commission had to consider whether the employer had followed the necessary procedures for dismissal and whether the termination decision was based on credible evidence.

The commission found that Tox Free Australia had conducted an adequate investigation into the allegations of misconduct and theft. However, the commission was not satisfied that the employer had established the misconduct on the balance of probabilities. Consequently, the commission concluded that the dismissal was unfair because it was not based on a valid reason. The commission also noted that the employer had not provided Mr Miles with an opportunity to respond to the allegations before making the termination decision, which further contributed to the unfairness of the dismissal. As a result, the commission ordered Tox Free Australia to reinstate Mr Miles to his former position and award him compensation for the period of the unlawful termination.

Michael Miles v Tox Free Australia

DECISION

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