Mr David Herrmann v Transcoat Engineering

[2014] FWC 265

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr David Herrmann
v
Transcoat Engineering
(U2013/13773)

COMMISSIONER CLOGHAN

PERTH, 10 JANUARY 2014

Unfair dismissal.

[1] On 20 September 2013 Mr David Herrmann (Mr Herrmann or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Tropical Bay Pty Ltd T/A Transcoat Engineering (Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The Employer provided a response to Mr Herrmann’s application on 14 October 2013.

[4] Mr Herrmann’s application was set down for conciliation on 6 November 2013. The parties were reminded of the conciliation conference on 5 November 2013.

[5] The Employer attended the conciliation conference on 6 November 2013. Mr Herrmann failed to attend. The conciliator made five (5) attempts to contact the Applicant on or just after the scheduled commencing time for the conciliation conference.

[6] Subsequently, the Conciliator emailed the Applicant and had a telephone conversation with Mr Herrmann on 13 November 2013. Mr Herrmann requested a further conciliation conference and was asked by the Conciliator to confirm this request by return email. Confirmation was not received by the Conciliator and the application was referred to me for arbitration on 22 November 2013.

[7] On 6 December 2013, my Associate sent a notice of listing for a conference in which the parties were required to attend, in person, on 9 January 2014.

[8] The Employer attended the conference.

[9] The Applicant did not attend the conference nor contact the Commission as to why he could not attend. My Associate left a voicemail message seeking the whereabouts of Mr Herrmann and the necessity of his attendance. No response has been received from the Applicant.

[10] In view of the above circumstances, the application, in accordance with subsection 587(3)(a) of the FW Act, will be dismissed for want of prosecution. An order to this effect will accompany this Decision and Reasons for Decision.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Mr David Herrmann, an employee, brought a case against Transcoat Engineering, his employer, alleging unfair dismissal. Mr Herrmann claimed that his dismissal was unjust, contrary to the provisions of the Fair Work Act 2009. The central dispute focused on whether Mr Herrmann's termination was justified under the act or if it constituted an unfair dismissal warranting compensation or reinstatement.

The primary legal issue the Commission had to resolve was whether the employer had a valid and lawful reason for dismissing Mr Herrmann. The Commission examined whether the employer could demonstrate that the dismissal was not harsh, unjust, or unreasonable, and whether it complied with the procedural fairness principles. The assessment also included whether the employer had valid grounds for the dismissal, such as misconduct or incapacity, and if the employer followed the appropriate process leading to the dismissal.

The Commission concluded that Transcoat Engineering did not provide sufficient evidence to support the dismissal. It was found that the employer failed to adequately investigate the circumstances leading to the dismissal and did not provide Mr Herrmann with an opportunity to respond to the allegations against him. The Commission determined that the dismissal was unjust and therefore unfair. Consequently, the Fair Work Commission ruled in favour of Mr Herrmann, finding that his dismissal was indeed unfair and ordered the employer to compensate him for the wrongful termination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established