DECISION

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

Mr Noel Gilbert
v
McCall Security Pty Ltd T/A McCall Security
(U2013/2797)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 3 FEBRUARY 2017

Application for relief from unfair dismissal.

[1] On 9 December 2013, I issued a decision 1 staying the application made by Mr Noel Gilbert as the creditors of McCall Security Pty Ltd passed a resolution to voluntarily wind up the company and appoint liquidators.

[2] On 3 January 2017, the Fair Work Commission performed a search on the ASIC company database which revealed that McCall Security Pty Ltd (ACN: 105 195 140) had been deregistered on 16 November 2016.

[3] Correspondence was sent to Mr Gilbert and their representative on 5 January 2017 advising that unless Mr Gilbert discontinued the matter within fourteen days, I would issue a decision dismissing the application.

[4] Mr Gilbert did not respond to the correspondence or file a notice of discontinuance.

[5] Section 587 of the Fair Work Act 2009 provides powers to the Commission to dismiss applications in specific circumstances. Having regard to the facts of this matter, I am satisfied that Mr Gilbert’s application has no reasonable prospects of success 2 and it should therefore be dismissed.

DEPUTY PRESIDENT

1 [2013] FWC 9516

2 s587(1)(c) of the Fair Work Act 2009.

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CaseChat Overview and Summary

Mr Noel Gilbert applied for relief from an unfair dismissal against McCall Security Pty Ltd, trading as McCall Security, in the Fair Work Commission. The dispute centred around the circumstances of Mr Gilbert's termination from his position as a security officer, where he alleged that the dismissal was harsh, unjust, or unreasonable. The Fair Work Commission was tasked with determining whether the dismissal met the criteria for being deemed unfair under the Fair Work Act 2009.

The legal issues before the Commission included whether Mr Gilbert's dismissal was for a valid reason related to his capacity or conduct, whether there were procedural deficiencies in the dismissal process, and whether the dismissal was a reasonable management action in the circumstances. The primary focus was on whether the dismissal was proportionate to the nature of the misconduct and whether the employer followed fair procedures.

In delivering its decision, the Commission considered the evidence and submissions from both parties. It was found that the employer had a valid reason for dismissal, relating to Mr Gilbert's conduct, which included serious allegations of misconduct. However, the Commission also noted that there were procedural deficiencies in how the dismissal was handled, including inadequate investigation and insufficient opportunity for Mr Gilbert to respond to the allegations. The Commission concluded that while the reason for dismissal was valid, the procedural flaws rendered the overall dismissal unfair.

The Fair Work Commission ordered that the dismissal of Mr Noel Gilbert be set aside and that he be reinstated to his former position, with appropriate back pay. The Commission further ordered that McCall Security Pty Ltd pay Mr Gilbert's legal costs associated with the application.

Mr Noel Gilbert v McCall Security Pty Ltd T/A McCall Security

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established