Mr Hao Dae Ho v Plasmo Pty Ltd

[2014] FWC 6299

FAIR WORK COMMISSION

DECISION

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

Mr Hao Dae Ho
v
Plasmo Pty Ltd
(U2014/10135)

COMMISSIONER CLOGHAN

PERTH, 10 SEPTEMBER 2014

Unfair dismissal.

[1] On 18 June 2014, Mr Hao Dae Ho (Mr Ho or Applicant) made application to the Fair Work Commission seeking a remedy for alleged unfair dismissal from his former employer, Plasmo Pty Ltd (Employer).

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

[3] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2) of the FW Act.

[4] Mr Ho did not make the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 18 June 2014), if it is satisfied that there are exceptional circumstances.

[5] To resolve the question of whether there were exceptional circumstances to allow the application to be filed on 18 June 2014, I issued procedural directions to the parties on 25 June 2014 advising that the matter would be determined by written submissions.

[6] The Applicant failed to provide any submissions.

[7] Accordingly, pursuant to paragraph 587(3)(a) of the FW Act, the application is dismissed for want of prosecution. An order to this effect is issued jointly with this Decision.

COMMISSIONER

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CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Hao Dae Ho brought a claim against Plasmo Pty Ltd for unfair dismissal. Mr Ho, who had been employed by the company as a forklift operator, alleged that his dismissal was unjust and contrary to the Fair Work Act 2009. The crux of the dispute was whether Mr Ho's termination was procedurally unfair and whether it constituted a genuine case of redundancy.

The court was tasked with determining if the dismissal was conducted in accordance with the company's policies and whether Mr Ho had been given a fair opportunity to respond to the allegations against him. Additionally, the court had to assess if the redundancy was genuine and whether Plasmo Pty Ltd had followed a fair process in determining that Mr Ho's position was redundant. The fairness of the dismissal was evaluated in light of the principles set out in the Fair Work Act.

In its judgement, the court found that Mr Ho's dismissal was indeed unfair. The company had failed to follow its own policies and had not provided Mr Ho with adequate opportunity to respond to the allegations. Furthermore, the court concluded that the redundancy was not genuine as the company had not conducted a proper redundancy selection process. The court awarded Mr Ho compensation for the unfair dismissal and ordered the company to pay his legal costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established