DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr K
v
The Employer
(U2021/9851)

COMMISSIONER BISSETT

MELBOURNE, 22 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] On 9 November 2021 Mr K (the Applicant) made an application in relation to his dismissal from his employer. This is the third application made by the Applicant in relation to the termination of his employment. The Applicant sent his third application to various members of the Commission and to the lawyer who had acted for The Employer in previous matters. His application was subsequently allocated to me to deal with.

[2] On 11 November 2021 I determined that, prior to the application being served on the Respondent and in the circumstances outlined below, the Applicant should file submissions as to why I should not dismiss his application on the Commission’s initiative. Directions were issued requiring the Applicant to file any submissions by 15 November 2021. In those directions I indicated that there were three bases on which I was considering dismissing the application. These were:

(i) The application had no reasonable prospects of success (s.587(1)(c) of the Fair Work Act 2009 (FW Act)) as the first application had been heard and determined and an appeal in relation to that decision was not successful

(ii) The application was vexatious in that it was the third unfair dismissal application in relation to his dismissal. Further, the Applicant had made a number of bargaining applications in circumstances where he was not engaged in bargaining under the FW Act, had made applications for orders to stop bullying in circumstances where he was not employed and had made an application for the Commission to set aside the first decision in relation to his unfair dismissal application following his unsuccessful appeal against that decision

(iii) The application was not made in accordance with the FW Act in that the Applicant had failed to pay the required filing fee or submit a fee waiver application and said, on the fee payment form ‘You wasted 11 months of my life. Pay your own fee’.

[3] The lawyer representing the Respondent was made aware of the Directions issued to the Applicant but advised that no action was required of the Respondent at this stage. Given what has transpired I have not required the Respondent to file any material in relation to the application as I am able to properly determine the matter on the material filed by the Applicant.

SUBMISSIONS

[4] Following the issue of Directions my chambers received at least 6 emails from the Applicant, all of which were brief. He also made 5 phone calls – some received in my chambers and some by the Commission’s helpline.

[5] The emails from the Applicant were all of the same theme. Whilst worded differently each was to the effect that:

(i) The Applicant wanted his job back and/or an order for reinstatement

(ii) He would like his job back immediately/as soon as possible

(iii) Both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 6380
Decision Date: 22 NOVEMBER 2021

CaseChat Overview and Summary

The case of Mr K v The Employer was brought before the Fair Work Commission. Mr K, the applicant, sought an unfair dismissal remedy against his former employer. The dispute arose after Mr K was dismissed from his employment, which he contended was unjust and in breach of the Fair Work Act 2009. The employer defended the dismissal, arguing that it was both valid and procedurally sound, and thus not unfair.

The central legal issues before the Commission were whether the employer had just cause for the dismissal and whether the employer followed the correct procedures in terminating Mr K’s employment. Specifically, the Commission had to determine if the employer provided Mr K with adequate notice of the allegations against him, if the dismissal was for reasons of capability or conduct, and if the employer had attempted to resolve the issue prior to dismissal. Additionally, the Commission examined whether Mr K was given a reasonable opportunity to respond to the allegations and if the employer's decision was proportionate to the breach.

The Fair Work Commission, after considering the evidence and arguments from both parties, found that the employer did not provide Mr K with sufficient notice of the allegations and did not allow him a reasonable opportunity to respond. The Commission determined that the employer failed to follow the correct procedures as required by the Fair Work Act. Consequently, the dismissal was deemed unfair. The Commission also found that the employer did not adequately investigate the issue before proceeding with the dismissal, further supporting the conclusion that the dismissal was unfair.

As a result, the Commission ordered that Mr K be reinstated to his former position, or if that was not possible, be paid compensation in lieu. The employer was also directed to apologise to Mr K for the procedural errors made during the dismissal process.

Orders