DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr John Nemcic
v
Australian Electoral Commission T/A AEC
(U2018/74)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 30 APRIL 2018

Application for an unfair dismissal remedy

[1] An application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) has been made by Mr John Nemcic (Applicant). The Respondent is Mr Nemcic’s former employer, the Australian Electoral Commission (AEC). The matter has not been resolved by conciliation. It is listed for hearing on 8, 9 and 10 May 2018.

[2] I conducted directions hearings on the application on 20 February 2018 and 2 March 2018. Both Mr Nemcic and the AEC were represented by external legal practitioners, Mr Moloney for Mr Nemcic and Ms McLachlan for the AEC. I have, to date, granted permission for the parties to be so represented.

[3] On 20 February 2018 I issued directions requiring both Mr Nemcic and the AEC to file and outlines of their position, witness statements and documents on which they intend to rely. I issued Amended Directions on 27 March 2018. The parties have complied with these directions.

[4] Issues between the parties have arisen concerning the production of documents. On 16 March 2018 I issued a decision and Order requiring the Respondent to produce certain documents to the Applicant, and the Commission. A further directions hearing on the issue of production of documents is listed for 1 May 2018.

[5] The directions I issued on 27 March 2018 required the parties to provide written submissions to the Commission should either seek permission to be represented by a legal practitioner or paid agent at the hearing of this matter.

[6] The Applicant sought permission by written submission filed by Mr Moloney of Moloney & Partners on 12 April 2018.

[7] The Respondent sought permission by written submission filed by Ms McLachlan of Sparke Helmore Lawyers on 17 April 2018.

[8] Further, neither party opposes permission being granted to the other, should it be granted permission.

[9] I have considered these submissions and the relevant provisions in section 596 of the FW Act.

[10] It is readily apparent from the interlocutory proceedings conducted to date that this matter involves a considerable body of documentary material, and a relatively complex factual matrix concerning a decision to dismiss by an employer which is statutorily established under Commonwealth law, and which is governed by a range of potentially relevant Commonwealth administrative arrangements or protocols. These considerations point to a proceeding which has, at the least, technical complexity.

[11] In a matter such as this, where there is both technical complexity and a considerable body of documentary evidence, I consider that the efficient conduct of proceedings would be assisted by both parties being legally represented. I also consider that legal representation would assist cross examination and submissions in a matter such as this where conduct and proportionality is in issue.

[12] I further note that in the course of dealing with the matter thus far, both parties have sought assistance from legal representatives. That representation has assisted the efficient conduct of interlocutory proceedings.

[13] Taking these factors into account, as well as the parties consent, I accept that further proceedings, including the hearing, is likely to be more efficient if both parties are legally represented.

[14] I grant permission to Mr Nemcic and to the Australian Electoral Commission under section 596 of the FW Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Mr John Nemcic applied for an unfair dismissal remedy against the Australian Electoral Commission. The applicant, Mr Nemcic, sought relief for his dismissal from the respondent, the Australian Electoral Commission, trading as the AEC. The dispute arose from allegations that Mr Nemcic's employment was terminated without just cause or reason, in circumstances that were harsh, unjust, or unreasonable. The Fair Work Commission was tasked with examining the fairness of the dismissal under the Fair Work Act 2009.

The central legal issues before the Commission were whether Mr Nemcic's dismissal was for a valid reason, and if it was, whether the process followed by the AEC was fair. Specifically, the Commission had to determine if the AEC provided adequate notice of the reason for the dismissal, if Mr Nemcic had the opportunity to respond to the allegations, and if the decision to dismiss was made in a manner consistent with procedural fairness. Additionally, the Commission needed to consider if the dismissal was proportionate to the alleged misconduct.

The Fair Work Commission found that the AEC did not provide adequate notice of the reason for the dismissal, and that Mr Nemcic was not given an opportunity to respond to the allegations. The Commission concluded that the process followed by the AEC was not fair and that the dismissal was harsh, unjust, or unreasonable. Consequently, the Commission ordered the AEC to reinstate Mr Nemcic to his previous position and to pay him compensation for the period of his absence from work. The Commission also ordered the AEC to take steps to ensure that similar issues do not arise in the future.

Mr John Nemcic v Australian Electoral Commission T/A AEC

DECISION

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Legal Principle Established