DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Snelson
v
Girl Guides Association of Victoria
(U2015/759)

COMMISSIONER WILSON

MELBOURNE, 22 JUNE 2015

Application for relief from unfair dismissal.

[1] On 24 February 2015, Mr Michael Snelson made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Snelson’s employment had been terminated by Girl Guides Association of Victoria (GGAV) on 25 November 2014.

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

[3] Mr Snelson was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 27 April 2015.

[4] Mr Snelson did not comply with this direction.

[5] On 8 May 2015, GGAV filed an objection to the application and sought the dismissal of Mr Snelson’s application. GGAV based their objection on grounds which include failure to comply with directions.

[6] On 13 May 2015, Mr Snelson was sent correspondence informing him of GGAV’s section 399A application. Mr Snelson was directed to file submissions and other documentary material in respect of GGAV’s application by close of business, on 27 May 2015. Mr Snelson was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Snelson 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] I am satisfied that GGAV’s objection filed on 8 May 2015 is an application to have the matter dismissed for Mr Snelson’s failure to comply with a direction.

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

[11] As Mr Snelson did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] After considering all the material, Mr Snelson’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

Michael Snelson applied for relief from his dismissal by the Girl Guides Association of Victoria. The application was heard in the Federal Circuit Court of Australia. Mr Snelson claimed his dismissal was unfair, and he sought reinstatement or compensation. The dispute centred on whether the dismissal was justified, with the Guide's Association asserting that the dismissal was based on capability issues and poor performance, while Mr Snelson argued that the dismissal was unfair and without proper justification.

The court had to determine whether Mr Snelson's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. Key issues included the adequacy of the performance management process, the fairness of the dismissal procedure, and whether the association provided sufficient evidence to support the dismissal on the grounds of poor performance. Additionally, the court considered whether the association acted in accordance with its own policies and procedures when dismissing Mr Snelson.

The court found that the dismissal process was not entirely procedurally fair. The Guide's Association had not followed its own policies and procedures in managing Mr Snelson's performance, and there was insufficient evidence to justify the dismissal on the grounds of poor performance. The court also found that the association did not adequately address Mr Snelson's performance issues before deciding to dismiss him. Consequently, the court concluded that the dismissal was unfair, and Mr Snelson was granted relief. The association was ordered to reinstate Mr Snelson to his previous position or, alternatively, to pay him compensation equivalent to twelve months' remuneration.

Michael Snelson v Girl Guides Association of Victoria

DECISION

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