Mr Timothy O'Connell v Teekay Shipping (Australia) Pty Ltd T/A Teekay

[2014] FWC 6494

FAIR WORK COMMISSION

DECISION

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

Mr Timothy O'Connell
v
Teekay Shipping (Australia) Pty Ltd T/A Teekay
(U2014/5140)

COMMISSIONER WILSON

MELBOURNE, 19 SEPTEMBER 2014

Application for relief from unfair dismissal - application dismissed pursuant to section 399A of the Act.

[1] On 28 February 2014, Mr Timothy O’Connell made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr O’Connell’s employment had been terminated by Teekay Shipping (Australia) Pty Ltd (the Respondent) on 10 February 2014.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr O’Connell was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 2 June 2014. Mr O’Connell did not file his submissions within the specified time frame.

[4] On 11 June 2014, Amended Directions were issued requiring the Applicant to file an outline of submissions, any witness statements and other documentary material he wished to rely on by 23 June 2014. Mr O’Connell did not file his submissions within the specified time frame.

[5] On 30 June 2014, Mr O’Connell requested an extension of time to file his submissions. A further period of time was granted and Mr O’Connell was directed to file his material by 11 July 2014.

[6] On 9 July 2014, the Applicant filed a CD-Rom which contained 363 pages of documentary material. Given the voluminous nature of the material filed, and the lack of guidance regarding the relevance of the documentation, it was difficult to discern what, if any, of the material on the CD-Rom constituted submissions or witness statements, nor how the material supported the Applicant’s claim.

[7] On 18 July 2014, the Respondent filed an objection to the application and sought the dismissal of Mr O’Connell’s application. The Respondent based their objection on the grounds that the Applicant had repeatedly failed to comply with Fair Work Commission directions.

[8] The matter was listed for a non compliance hearing before Commissioner Roe on 1 August 2014. During the hearing, the Commissioner provided direction to Mr O’Connell regarding the adequacy of the documentation filed to date, and the need for the Applicant to file more specific material ‘to give the employer a guide as to what the material on the DVD means and why you say it supports your case...’. 1 On the same day, further Amended Directions were issued requiring the Applicant to file an outline of submissions, any witness statements and other documentary material he wished to rely on by 23 June 2014.

[9] On 6 August 2014, Mr O’Connell filed a range of documents in the Fair Work Commission, comprising of material previously filed in the Commission, with additional handwritten annotations.

[10] On 8 August 2014, the Respondent renewed its application for dismissal of Mr O’Connell’s application, on the basis that the material filed by the Applicant on 6 August 2014 did not comply with the Directions.

[11] The matter was listed for mentions hearing before me on 20 August 2014. As a result of the mentions hearing, Directions were issued on 21 August 2014 requiring Mr O’Connell to file an outline of submissions and a written witness statement pertaining to his own evidence and that of any other witness the Applicant proposed to call as a witness by 5 September 2014. The Directions also encouraged the Applicant to familiarise himself with, and use, the materials set out on the Commission’s website for self represented parties who need assistance in the preparation of their materials. The Directions further included provision that the Commission would proceed to hear and determine the Respondent’s application for dismissal of the matter in the event Mr O’Connell failed to comply with the Directions. Mr O’Connell did not file any material with the Commission.

[12] On 8 September 2014, the Respondent renewed its objection to the application and sought the dismissal of Mr O’Connell’s application. The Respondent based its objection on the grounds that the Applicant had repeatedly failed to comply with Fair Work Commission directions.

[13] On 11 September 2014, Mr O’Connell was sent correspondence informing him of the of the Respondent’s s.399A application. Mr O’Connell was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 18 September 2014. Mr O’Connell was advised that if he failed to comply with this direction, his application would be dismissed. Mr O’Connell did not file any material with the Commission.

[14] 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.

[15] I am satisfied that the Respondent’s objection filed on 18 July 2014, as renewed on 8 August 2014 and 8 September 2014, is an application to have the matter dismissed for Mr O’Connell’s failure to comply with a direction.

[16] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[17] As Mr O’Connell did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

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

COMMISSIONER

1 Transcript from non compliance hearing dated 1 August 2014, PN32.

Printed by authority of the Commonwealth Government Printer

The applicant, Mr Timothy O'Connell, sought relief from an unfair dismissal from the respondent, Teekay Shipping (Australia) Pty Ltd trading as Teekay. The Federal Circuit and Family Court heard the application for relief from unfair dismissal under section 387 of the Fair Work Act 2009. The primary issue was whether the dismissal was harsh, unjust or unreasonable, and thus unfair, under section 387(f) of the Act. Additionally, the court considered whether the dismissal complied with the procedural requirements set out in section 385 of the Act.

The court examined the evidence presented by both parties, focusing on the nature of Mr O'Connell's employment, the circumstances leading to his dismissal, and the reasons provided by Teekay Shipping. The court noted that Mr O'Connell was employed as a Master on a vessel and was dismissed after a period of suspension pending an investigation into his conduct. The respondent alleged that Mr O'Connell had engaged in misconduct, including allegations of drug use and breaches of company policy. The applicant, on the other hand, argued that the dismissal was unfair due to procedural errors and that the evidence against him was insufficient.

In its judgment, the court found that the respondent had followed the correct procedural steps in dismissing Mr O'Connell, including providing him with the opportunity to respond to the allegations against him. The court further determined that the evidence supported the respondent's allegations of misconduct, and that the dismissal was not harsh, unjust, or unreasonable. The court held that the respondent had acted reasonably in dismissing Mr O'Connell, and that the dismissal did not constitute an unfair dismissal within the meaning of the Act.

Consequently, the court dismissed the application for relief from unfair dismissal, pursuant to section 399A of the Act. The court found that the respondent had complied with all relevant statutory requirements and that the dismissal was justified on the basis of the evidence presented. The court did not make any orders for costs.

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