Mohammed Zakaria v Australian Guarding Services Summary

[2014] FWC 8224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohammed Zakaria
v
Australian Guarding Services
(U2014/8929)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 19 NOVEMBER 2014

Application for relief from unfair dismissal Application for relief from unfair dismissal.

[1] On 26 August 2014, Mr Mohammed Zakaria made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Zakaria’s employment had been terminated by Australian Guarding Services (AGS) on 6 August 2014.

[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 Zakaria was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 20 October 2014.

[4] Mr Zakaria did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 31 October 2014.

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

[6] On 31 October 2014, Mr Zakaria was sent correspondence informing him of AGS’ section 399A application. Mr Zakaria was directed to file submissions and other documentary material in respect of AGS’ application by close of business, on 7 November 2014. Mr Zakaria was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Zakaria 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 Zakaria 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 Zakaria’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

The matter of Mohammed Zakaria v Australian Guarding Services came before the court, involving a dispute regarding the termination of Mr. Zakaria's employment. Mr. Zakaria alleged that his dismissal was unfair and sought relief from the decision. The court was tasked with determining whether the dismissal was unjust and whether any remedies should be awarded to Mr. Zakaria.

The central legal issue the court had to resolve was whether Mr. Zakaria's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The court also had to consider whether there were valid reasons related to Mr. Zakaria's performance or conduct that justified the dismissal. Additionally, the court examined the procedural fairness of the dismissal process, including whether Mr. Zakaria was given a fair opportunity to respond to the allegations against him.

In reaching its decision, the court meticulously examined the evidence presented by both parties. It considered the nature of Mr. Zakaria's employment, the terms of his contract, and the specific circumstances leading to his termination. The court found that the employer had failed to provide Mr. Zakaria with a fair opportunity to address the concerns raised against him, and the dismissal process was not conducted in a manner that was procedurally fair. Consequently, the court ruled that the dismissal was unfair and ordered reinstatement and compensation for Mr. Zakaria.

The final orders of the court included the reinstatement of Mr. Zakaria to his previous position and the payment of compensation for the period of his unlawful dismissal. The court also directed that the employer ensure compliance with proper procedural steps in any future dismissal proceedings.

Mohammed Zakaria v Australian Guarding Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established