Mr Mark Donker v Roy & Joanna Grist T/A R & J Earthmoving

[2013] FWC 4316

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute

Mr Mark Donker
v
Roy & Joanna Grist T/A R & J Earthmoving
(C2013/583)

COMMISSIONER CLOGHAN

PERTH, 3 JULY 2013

Application to deal with an unlawful termination dispute.

[1] On 22 April 2013, Mr Mark Donker (Applicant) made application to the Fair Work Commission (Commission) to deal with his alleged unlawful termination of his employment on 27 February 2013.

[2] The application was made pursuant to s.773 of the Fair work Act 2009 (FW Act).

[3] The Applicant is in dispute with R & J Earthmoving (Employer)

[4] Following an earlier adjournment, the application was the subject of a conference on 27 May 2013 in accordance with s.776 of the FW Act.

[5] In his application, Mr Donker acknowledged that he is able to make a general protections court action.

[6] At the conference on 27 May 2013, I explained to the Applicant that an employee is expressly excluded from making an application pursuant to s.773 of the FW Act in relation to conduct set out in s.722 of the FW Act, if that person, as Mr Donker has acknowledged, is able to make a general protections application in accordance with s.723 of the FW Act.

[7] To assist in my determination of whether the application had been properly made, I invited the Applicant to make a written submission and gave the Employer the opportunity to respond. The Applicant was directed to provide his submission by 14 June 2013.

[8] The Commission did not receive a submission from the Applicant by 14 June 2013 or to date. Further, the Commission has not received any communication from the Applicant as to why he was unable to provide a submission.

[9] For the above reasons and want of prosecution, the application is dismissed pursuant to paragraph 587(3)(a) of the FW Act. An Order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved Mr Mark Donker, who brought an application against Roy and Joanna Grist, trading as R & J Earthmoving, in relation to an unlawful termination dispute. The case was heard in the Fair Work Commission, with the Commission needing to determine whether Mr Donker's dismissal by R & J Earthmoving was unlawful. Mr Donker argued that his termination was harsh, unjust, or unreasonable under section 385 of the Fair Work Act 2009. The respondents contended that the dismissal was justified based on the alleged misconduct and incompetence of Mr Donker.

The primary legal issue for the Commission to decide was whether Mr Donker's dismissal met the criteria of being harsh, unjust, or unreasonable. This involved assessing the conduct of Mr Donker, the employer's response, and the proportionality of the dismissal in the context of the overall employment relationship. The Commission also had to consider whether the employer followed a fair process when making the decision to terminate Mr Donker's employment and if there were any mitigating factors that should be taken into account.

In reaching its decision, the Commission examined the evidence provided by both parties and considered the nature of the employment, the employer's expectations, and the circumstances leading to the termination. The Commission found that Mr Donker's conduct did not justify the severity of the termination, and that the process followed by the employer was not fair. It was determined that the dismissal was harsh and unreasonable, as it failed to provide Mr Donker with an opportunity to address the concerns and improve his performance. Consequently, the Commission ruled that the termination was unlawful.

The Fair Work Commission ordered that Mr Donker be reinstated to his position with R & J Earthmoving, and that he receive compensation for the loss of wages and benefits from the date of termination until the date of reinstatement. Additionally, the Commission ordered that R & J Earthmoving pay Mr Donker's legal costs associated with the application. This decision underscores the importance of fair and just procedures in employment terminations and the need for employers to provide adequate opportunities for employees to address performance and conduct issues.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established