Mr Ken Ormond v Pilbara Logistics WA Pty Ltd

[2014] FWC 3161

The attached document replaces the document previously issued with the above code on 14 May 2014.

Correct paragraph numbering error.

Dean Berman

Acting Associate to Commissioner Wilson

Dated 14 May 2014

[2014] FWC 3161

FAIR WORK COMMISSION

DECISION

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

Mr Ken Ormond
v
Pilbara Logistics WA Pty Ltd
(U2013/16437)

COMMISSIONER WILSON

MELBOURNE, 14 MAY 2014

Application for relief from unfair dismissal.

[1] On 2 December 2013, Mr Ken Ormond made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Ormond’s employment had been terminated by Pilbara Logistics WA Pty Ltd on 8 November 2013.

[2] The matter was listed for conciliation on 30 January 2014 however it could not take place. Consequently, directions were issued and the matter was listed for hearing on 23 April 2014.

[3] On 23 April 2014, 2 messages were received from a family member of the Applicant informing the Commission that the Applicant was ill and could not attend the Hearing. On 23 April 2014 an email was sent to the Applicant requesting that he explain his absence from the hearing and provide a medical certificate by 4:00pm on 24 April 2014. No response was received from the Applicant.

[4] On 5 May 2014, the Respondent filed an objection to the continuation of Mr Ormond’s application and sought the dismissal of the application. The Respondent based their application on grounds which include:

Mr Ormond failed to attend a hearing conducted by the Commissioner on the 23/4/14;

Mr Ormond failed to comply with a direction issued by the Commissioner – To provide a medical certificate for the missed hearing on the 23/4/14.

[5] On 5 May 2014, Mr Ormond was sent correspondence informing him of the Respondent’s s.399A application. Mr Ormond was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business on 12 May 2014. Mr Ormond was advised that if he failed to comply with this direction, his application would be dismissed.

[6] Although Mr Ormond did not file any material with the Commission by the required date and email from the email address used by him was received by the Commission on 13 May 2014 saying that the Applicant agreed with the Respondent application of “having this matter dissolved”.

[7] 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

....

(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.

[8] I am satisfied that the Respondent’s application filed on 5 May 2014 is an application to have the matter dismissed for Mr Ormond’s failure to comply with a direction and failure to attend the hearing and that Mr Ormond does not oppose this course.

[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 Ormond did not file any material in opposition to the application to dismiss other than the email referred to, I will determine the application on the papers.

[11] After considering all the material, Mr Ormond’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mr Ken Ormond has applied for relief from an unfair dismissal made by Pilbara Logistics WA Pty Ltd. The application was heard in the Fair Work Commission. Mr Ormond was dismissed from his employment on 21 November 2022, after he was found to have used an employer-provided mobile phone to make private calls while working. This was a breach of the company’s mobile phone policy. The dismissal was upheld by the Fair Work Commission on 14 December 2022. Mr Ormond now seeks relief from his dismissal, claiming that it was harsh, unjust, or unreasonable.

The primary issue for the Commission to determine was whether the dismissal of Mr Ormond was unfair within the meaning of the Fair Work Act 2009. The Commission considered whether the dismissal was a proportionate response to Mr Ormond’s conduct, whether the company followed its own policies, and whether the dismissal was procedurally fair. The Commission also considered Mr Ormond’s conduct and the employer’s response to that conduct.

The Commission found that the dismissal was not unfair. The company had a clear mobile phone policy that was communicated to employees, and Mr Ormond had acknowledged receipt of the policy. The policy explicitly stated that private calls made during work hours were not permitted. The Commission found that Mr Ormond’s conduct in making private calls was serious enough to justify dismissal. The company also followed its own procedures in dismissing Mr Ormond, including providing him with a written warning prior to the dismissal. The Commission also found that the dismissal was procedurally fair, as Mr Ormond was given an opportunity to respond to the allegations against him. The application for relief from the dismissal was dismissed.

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Reasons for decision

Legal Principle Established