DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Wallis
v
South City Plaster
(U2016/4881)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 1 JUNE 2016

Application for relief from unfair dismissal.

[1] On 25 February 2016, Mr Michael Wallis made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Wallis’ employment had been terminated by South City Plaster on 8 February 2016.

[2] The matter was the subject of conciliation on 11 April 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Wallis was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 9 May 2016.

[4] Mr Wallis did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Kovacic on 20 May 2016.

[5] Mr Wallis did not attend the non compliance hearing. South City Plaster made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Wallis had failed to comply with the direction of the Fair Work Commission. Deputy President Kovacic waived compliance with the Fair Work Commission Rules 2013 and accepted South City Plaster’s oral application.

[6] On 20 May 2016, Mr Wallis was sent correspondence informing him of South City Plaster’s section 399A application. Mr Wallis was directed to file submissions and other documentary material in respect of South City Plaster’s application by close of business, on 27 May 2016. Mr Wallis was advised that if he failed to comply with this direction, his application would be dismissed.

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

[11] As Mr Wallis has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Wallis has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Wallis’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Michael Wallis, sought relief from his dismissal by the respondent, South City Plaster, arguing that the termination was unjust and unfair under the Fair Work Act 2009. The case was heard in the Federal Circuit Court of Australia. Wallis contended that his dismissal was not only harsh but also unjust, and he sought reinstatement or compensation. South City Plaster argued that the dismissal was justified due to Wallis's misconduct and failure to adhere to the company's policies.

The central legal issues before the court involved determining whether Wallis's dismissal was procedurally fair, whether it was based on genuine operational reasons, and if the dismissal was disproportionate to the offence committed. Wallis claimed that his dismissal was unfair due to procedural deficiencies and the absence of a fair opportunity to respond to the allegations against him. South City Plaster maintained that the dismissal was justified because Wallis had engaged in serious misconduct, which warranted termination without prior notice.

The court considered the evidence presented by both parties and the procedural fairness of the dismissal process. It examined whether South City Plaster followed its own policies and whether Wallis was given a reasonable opportunity to address the allegations. The court found that while the respondent had a policy in place, it was not strictly adhered to in Wallis's case. Furthermore, Wallis was not provided with adequate information regarding the allegations against him, which impacted his ability to respond effectively. Consequently, the court determined that the dismissal was unfair due to these procedural shortcomings.

The court ordered that Michael Wallis be reinstated to his former position with South City Plaster and that he receive compensation for the period of his wrongful dismissal. Additionally, the court mandated that South City Plaster review and amend its disciplinary procedures to ensure compliance with the principles of natural justice in future cases.

Michael Wallis v South City Plaster

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established