DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohamed Elkadi
v
Coates Hire Operations Pty Limited T/A Coates Hire
(U2015/3935)

COMMISSIONER WILSON

MELBOURNE, 2 JUNE 2015

Application for relief from unfair dismissal.

[1] On 12 March 2015, Mr Mohamed Elkadi made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Elkadi’s employment had been terminated by Coates Hire Operations Pty Ltd T/A Coates Hire on 19 February 2015.

[2] The matter was the subject of conciliation on 21 April 2015 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Elkadi was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 11 May 2015.

[4] Mr Elkadi did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 15 May 2015.

[5] Mr Elkadi did not attend the non compliance hearing. Coates Hire made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Elkadi 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 Coates Hire’s oral application.

[6] On 15 May 2015, Mr Elkadi was sent correspondence informing him of Coates Hire’s section 399A application. Mr Elkadi was directed to file submissions and other documentary material in respect of Coates Hire’s application by close of business, on 25 May 2015. Mr Elkadi was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Elkadi 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 Elkadi 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 Elkadi’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

Mohamed Elkadi brought an application for relief from unfair dismissal against Coates Hire Operations Pty Limited, trading as Coates Hire, in the Fair Work Commission. The applicant, a former employee of Coates Hire, alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The central issue before the Commission was whether the dismissal was unfair within the meaning of the Act. Specifically, the Commission had to determine if the dismissal was a genuine redundancy, as claimed by the respondent, or if it was due to other reasons, such as the applicant's involvement in protected industrial action. The Commission examined the evidence presented by both parties, including the circumstances surrounding the applicant's employment, the reasons for the dismissal, and the respondent's adherence to its own policies and procedures. After considering the evidence and arguments, the Commission found that the dismissal was not unfair. The respondent had provided clear evidence of the need for a redundancy, and the applicant had not demonstrated that the dismissal was due to any other reason, such as his involvement in protected industrial action. Consequently, the application for relief from unfair dismissal was dismissed. The Commission's decision was based on the respondent's demonstration of the genuineness of the redundancy and the lack of evidence supporting any other grounds for the dismissal. The Commission concluded that the applicant's dismissal was fair and in accordance with the provisions of the Act.

Mohamed Elkadi v Coates Hire Operations Pty Limited T/A Coates Hire

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established