Mr Linton Sayer v Melsteel Pty Ltd
[2011] FWA 4373
•8 JULY 2011
Note: An appeal pursuant to s.604 (C2011/5107) was lodged against this decision - refer to Full Bench decision dated 22 November 2011 [[2011] FWAFB 7498] for result of appeal.
[2011] FWA 4373 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Linton Sayer
v
Melsteel Pty Ltd
(U2010/12845)
COMMISSIONER ROE | MELBOURNE, 8 JULY 2011 |
Termination of employment – non-attendance of applicant - application dismissed.
[1] The matter arises from an application filed on 28 September 2010 under s 394 of the Fair Work Act 2009 (the Act) by Mr Linton Sayer (the Applicant) for relief in respect to the termination of his employment from Melsteel Pty Ltd (the Respondent). The Application was originally filed by telephone and then a signed and written application was received on 8 October 2010.
[2] The Applicant was dismissed by a letter dated 17 September 2010. The Applicant was employed since September 2006. The dismissal was at the initiative of the employer. There is no issue of redundancy. The Respondent is not a small business employer. A collective agreement approved pursuant to the Workplace Relations Act 1996 applied to the Respondent and the Applicant. The dismissal was a summary termination for misconduct.
[3] I am satisfied that the application was made within time and that the Applicant is protected from unfair dismissal and that there are no other jurisdictional obstacles to considering the application.
[4] The dismissal relates to conduct and performance.
[5] The evidence of the Respondent is that the Applicant was warned on 21 November 2009 in respect to not providing advice of a single day absence and received a verbal warning for drinking at lunch time in October 2008. However, the termination resulted from an incident which took place on 9 August 2010. The Applicant alleged that he was assaulted by his supervisor. The Applicant also alleged earlier incidents of bullying and harassment. The Respondent alleges that the attendance record of the Applicant following the incident of 9 August 2010 was poor.
[6] The Respondent says that investigations by the Respondent’s workers compensation insurer into the 9 August 2010 incident did not substantiate the allegations of the Applicant and that the police did not decide to lay charges in respect to the alleged assault. Following this the Respondent dismissed the Applicant by correspondence on 17 September 2010. The Applicant says he received the notice on 21 September 2010. The notice said that the Respondent dismissed the Applicant for “false accusations of assault against a supervisor, treating supervisor in a threatening manner, inability to take instructions from your supervisor, two prior warnings have been given and unacceptable attendance.” The Respondent paid three weeks pay in lieu of notice.
[7] The Respondent provided witness statements from Ian Hunter, Managing Director of the Respondent who was involved in the decision to terminate the Applicant; from the Applicant’s supervisor Mr Savage; and from Peter Bennett an OHS and HR consultant for the Respondent. The Applicant provided statements and material in support of his allegation against the supervisor and in support of his contention about bullying and harassment. He included a statutory declaration from Mr George Hurford who says he was an eye witness to the assault by the supervisor on the Applicant.
[8] The matter was scheduled for conciliation conference on 28 October 2010. The Applicant was not able to be contacted at that time, however, he was contacted shortly after and requested that the conference be rescheduled. It was then set down for arbitration on 7 and 8 February 2011. Senior Deputy President Acton conducted a hearing on 23 December 2010 and agreed to defer the arbitration until 6 and 7 June 2011 due to the illness of the Applicant which was substantiated by appropriate medical evidence.
[9] The Applicant was required to provide his evidence by 18 April 2011. He provided his materials to the Tribunal on 12 April 2011 but the Respondent did not receive them until 12 May 2011. The Respondent requested more time to respond. This request was initially rejected but on 20 May 2011 the matter was rescheduled to be heard on 7 and 8 July 2011 and the Respondent required to file its materials by 17 June 2011. The Respondent filed a submission on 21 June and its witness statements on 30 June 2011.
[10] When I received the file I noted that the statement of the eye witness to the alleged assault was included in the Applicant’s materials but it was not clear if the Applicant intended to call this person as a witness in the proceedings. I requested my Associate to contact the Applicant to clarify this matter. My Associate rang the Applicant on three occasions and left messages but he failed to return the calls.
[11] The Applicant failed to attend the hearing at the appointed time. My Associate attempted to contact him by telephone without success. Mr John Pollard had sought leave to represent the Respondent by notice on 17 June 2011. At the commencement of proceedings I granted leave for Mr Pollard to represent the Respondent.
[12] I was concerned that the non-attendance of the Applicant may be due to a recurrence of his illness. However, I was also concerned that the Respondent has been required to and has attended the proceedings and that the matter has been continuing now for a long time. The matter had been deferred due to the illness of the Applicant. It is ten months since the dismissal and memories will be fading. I am satisfied that the Applicant had plenty of notice of and was aware of the hearing. The Applicant did submit materials in April 2011. I therefore determined that it was appropriate to proceed to determine the matter.
[13] In the absence of the Applicant I must rely on the uncontested evidence provided by the Respondent. If I accept the Respondent’s material then it is sufficient to establish a valid reason for termination. In the absence of evidence from the Applicant I am not able to find that the termination was unfair.
[14] I advised the Respondent that I would dismiss the application and issue an order to this effect.
[15] The Respondent made an application for an order to be made that the Applicant pay the costs of the Respondent. I indicated that the Respondent was at liberty to make such an application and should advise within seven days if they wish to proceed with such an application. Should such an application be made it will be listed for further hearing.
COMMISSIONER
Appearances:
Mr John Pollard for the Respondent.
No appearance for the Applicant.
Hearing details:
2011
Melbourne
July 7
Printed by authority of the Commonwealth Government Printer
<Price code A, PR511354>
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