Mr Timothy Ryan v Decc Environmental

[2020] FWC 3686

[2020] FWC 3686

FAIR WORK COMMISSION

DECISION

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

Mr Timothy Ryan
v
Decc Environmental
(U2020/3171)

COMMISSIONER BOOTH BRISBANE, 14 JULY 2020

Application for an unfair dismissal remedy – application made under s.587 to dismiss application.

[1] Mr Timothy Ryan (the Applicant) filed an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) on 17 March 2020, alleging that his former employer, Decc Environmental (Decc/the Respondent), had unfairly dismissed him.

[2] Mr Ryan was employed as a daily hire employee by Decc for a period of five years and four months. At the time of his dismissal, he was engaged by Decc in the demolition of fifty houses in the Underwood area in Queensland.

[3] On 4 March 2020, Mr Ryan removed from site a steel shed that was part of the demolition work. Mr Ryan used his trailer which he had brought to site to remove the shed. On 6 March 2020, Mr Ryan was approached by the site supervisor, Mr Murray Grant, and the site foreman, Mr Robert Golf, and informed his employment was being terminated due to him stealing the shed.

[4] The matter proceeded to conciliation on 27 April 2020 but did not resolve. The matter was allocated to me and I listed the matter for a conference on 1 June 2020. The matter was not able to be resolved at the conference.

[5] On 27 May 2020, Mr Ryan filed several witness statements and an outline of submissions in the matter. On 9 June 2020, Decc filed an application under s.587 of the Act to dismiss the application on the basis the application is frivolous, vexatious, or has no reasonable prospects of success. Decc sought the application be determined prior to directions being issued for reasons outlined below.

[6] This decision deals only with the application under s.587 and does not deal with the substantive merits of the case.

LEGISLATION

[7] Section 587 of the Act sets out when the Commission can dismiss an application:

Section 587 – Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note:          For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

RESPONDENT’S SUBMISSIONS

[8] Decc submitted that on the basis of Mr Ryan’s submissions, he admitted to removing the shed from site, and that another employee was provided with permission to do so but that Mr Ryan was not given permission or authority to remove the shed.

[9] Decc said that Mr Ryan had confirmed that he only commenced looking for work in the week of 1 June 2020 as he was otherwise engaged in home schooling, which Decc said would significantly reduce any entitlement to compensation. Further, Decc submitted that Mr Ryan has already been provided with a significant amount exceeding $19,000.00 by way of incremental payments to a redundancy trust as part of an industry specific redundancy under the Building and Civil Construction Award 2010, which they argued could be taken into consideration to offset any compensation amount awarded, should the application succeed.

[10] Decc said that Mr Ryan was engaged as a daily hire employee in the building and construction industry with limited expectations of ongoing stable work from project to project, and the project Mr Ryan was engaged on ended with other workers ending employment in late April 2020.

[11] Decc submitted that successful reinstatement was unlikely and monetary damages would be non-existent or minimal, and that if the matter were to proceed to directions or a hearing, the employer would incur substantial costs and disruption. Decc said they had made repeated and reasonable offers to settle the matter.

[12] Decc argued the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587, and that there was sufficient information before it to dismiss the matter without directions.

APPLICANT’S SUBMISSIONS

[13] Mr Ryan’s submissions in reply to Decc’s s.587 application did not directly address s.587, and instead focussed on what appear to be his perceived merits of the case.

[14] Mr Ryan submitted that permission had been given to another employee, Mr Austin Dillion, to remove the shed, but Mr Dillion could not remove the shed as he had been moved to work on another site. Mr Ryan said he removed the shed after confirming with Mr Dillion that he was doing so. Mr Ryan disputed that he had committed theft.

[15] Mr Ryan said that he understood that the shed could be removed from site and all relevant parties had been consulted. As an operator, Mr Ryan said his daily contact and communication is with the site foreman, Mr Golf. Mr Ryan said Mr Golf’s consent was obtained to remove the shed.

[16] Mr Ryan said that at the time shed was loaded onto the trailer at approximately 10:30am on 4 March 2020, it remained onsite, in plain sight, giving substantial time and opportunity for intervention. Mr Ryan said nobody intervened as the site foreman had consented to removal.

[17] Mr Ryan acknowledged that the project ended at the end of April 2020. He submitted that other employees ended employment at this point.

[18] Mr Ryan said his dismissal was an issue of fairness, and said that at no point has he felt he has been treated fairly in the termination of his employment. Mr Ryan said that due to the accusations of theft, his reputation and integrity have been compromised. Mr Ryan said he has been entirely honest and truthful through this process and is a hard-working family man with good values.

[19] Mr Ryan said that his home-schooling duties commenced on 20 April 2020 and continued until 25 May 2020 when his children’s school reopened, and before this he was actively looking for work.

CONSIDERATION

[20] The power of the Commission to summarily dismiss an application should always be used sparingly and approached with caution. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others, 1“the jurisdiction to summarily terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion”.

[21] On the material filed, there are disputed facts around the authority given and whether Mr Ryan was given permission to remove the shed. The Applicant says the site foreman gave him permission to take it, and the Respondent clearly refutes this.

[22] The Respondent also suggests that the Applicant has rejected reasonable offers to settle the matter, and contends that the Applicant may have access to an industry specific redundancy and that this should be taken into consideration to offset any compensation.

[23] It is the case that the authorities have consistently urged caution in summarily dismissing matters.

[24] In this matter I rely on the authority of the General Steel Industries case where it was stated that summarily dismissing a matter in circumstances where there are disputed facts should be approached with caution.

[25] In my view, particularly at this stage in the proceedings, that caution should be exercised.

[26] However, the Respondent has, in my view, properly sought to resolve the matter and notes that it would incur substantial costs and disruption should the matter proceed to directions or a hearing. I agree. In my view it is appropriate that the parties be directed to attend a conference assisted by another Member of the Tribunal for the purposes of seeking to resolve the matter. I will direct that this occur prior to the filing of further material.

[27] A direction to this effect will issue accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR720970>

 1 (1964) 112 CLR 125.