Mr Mark Walton v Hitsol Pty Ltd T/A Hit Solutions

[2017] FWC 5205

[2017] FWC 5205

FAIR WORK COMMISSION

DECISION

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

Mr Mark Walton
v
Hitsol Pty Ltd T/A HIT Solutions
(U2017/3022)

DEPUTY PRESIDENT BINET PERTH, 10 OCTOBER 2017

Application for an unfair dismissal remedy – applicant was unfairly dismissed.

[1] On 20 March 2017, Mr Mark Walton (Mr Walton) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Hitsol Pty Ltd T/A HIT Solutions (HIT Solutions).

[2] On 24 March 2017, HIT Solutions lodged a Form F3 Employer Response, in which it advised that it objected to the Application on the grounds that the business is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (Jurisdictional Objection).

[3] On 24 April 2017, the matter went to conciliation before a FWC conciliator but the parties were unable to resolve the issues in dispute.

[4] On 20 July 2017, I held a conciliation conference, attended by Mr Walton, Mr Guy Hopkins, Managing Director at HIT Solutions (Mr Hopkins) and Ms Dyna Jeffrey, Administration Manager at HIT Solutions (Ms Jeffrey). However, the issues in dispute remained unresolved. The matter was listed for a determinative conference on 9 October 2017 for the determination of the Jurisdictional Objection and the merits of the Application.

[5] Directions were issued to the parties on 27 July 2017. Mr Walton was directed to file by 3 August 2017 an outline of submissions, a witness statement for any witness to be called, a copy of any document upon which he wished to rely, and a copy of any authorities upon which he wished to rely. HIT Solutions were directed to file these materials by 10 August 2017.

[6] Mr Walton filed his substantive materials on 3 August 2017. However, his authorities were not filed until 7 August 2017. Due to the delay in Mr Walton filing his authorities, HIT Solutions requested, and was granted, an extension to file its materials. Amended directions were issued on 10 August 2017 requiring HIT Solutions to file its materials on 17 August 2017.

[7] On 16 August 2017, Mr Hopkins emailed Chambers and advised that HIT Solutions did not have time to file materials in accordance with the amended directions due to his and Ms Jeffrey’s home, study and work commitments (August Email). The August Email contained an offer of settlement to Mr Walton and stated ‘[i]f the FWC concludes that we owe Mr Walton anything so be it…’ HIT Solutions was advised that, if it wished to apply for a further extension of time, it should do so in writing. HIT Solutions was also advised that, unless the Application was discontinued, the matter would proceed as listed, and would be determined on the materials filed by the parties.

[8] On 25 August 2017, the parties were contacted in relation to the filing of an Agreed Statement of Facts. Despite no materials having been received from HIT Solutions, Mr Walton was directed to prepare and serve on HIT Solutions a Statement of Facts.

[9] HIT Solutions was invited to advise Chambers which facts were in dispute, and which were agreed, by 4 September 2017. HIT Solutions were informed that, in the absence of any objection, the facts would be presumed agreed by both parties. No response was received from HIT Solutions by this date, nor has any correspondence been received from HIT Solutions as at the date of this decision.

[10] HIT Solutions was contacted by Chambers prior to the determinative conference on 9 October 2017. Neither Mr Hopkins nor Ms Jeffrey was available. A message was left for them to return the call, but no contact was made before the commencement of the determinative conference.

[11] At the determinative conference, Mr Walton appeared on his own behalf and gave oral evidence under oath. No representative from HIT Solutions was present.

[12] In order to determine this matter, I had regard to the following materials from Mr Walton:

● Oral evidence given under oath
● Statement of Facts
● Applicant’s outline of argument: merits
● Applicant’s outline of argument: objections
● Applicant’s statement of evidence
● Mr Walton’s Employment Agreement
● Medical Certificate dated 8 March 2017
● A printout of text messages between Mr Walton and Mr Hopkins
● Employment Separation Certificate
● Letter of termination dated 8 March 2017
● Email correspondence between Mr Walton and Ms Jeffrey

[13] I did not have the benefit of any sworn evidence from HIT Solutions. However, I had regard to the following materials from HIT Solutions:

● Form F3 Employer Response
● Completed Small Business Fair Dismissal Code Checklist
● August Email

[14] For the reasons given on transcript on 9 October 2017, I find that Mr Walton was unfairly dismissed by HIT Solutions, and consider it appropriate that he be reinstated to the position in which he was employed immediately before the dismissal.

[15] An order to this effect (PR596650) will be issued with this decision. I will also make an order continuing Mr Walton’s employment from the time he was terminated, along with an order for HIT Solutions to pay to Mr Walton all lost remuneration, including superannuation, from the date of dismissal to his reinstatement, less $2,270.00 he has earned from other work during the period between the dismissal and his reinstatement.

DEPUTY PRESIDENT

Appearances:

M Walton, Applicant.

Hearing details:

2017.

Perth:

October 9.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR596649>