Nicholas Bailey v Octeros Manufacturing Pty Ltd - [2022] FWC 1946

[2022] FWC 1946

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicholas Bailey
v

Octeros Manufacturing Pty Ltd

(U2022/4110)

COMMISSIONER HUNT

BRISBANE, 29 SEPTEMBER 2022

Application for an unfair dismissal remedy – dismissed for purported misconduct in taking ‘kick-backs’ – Respondent failed to participate in proceedings – finding that dismissal was unfair – compensation ordered

On 7 April 2022, Mr Nicholas Bailey made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he had been dismissed from Octeros Manufacturing Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.

In his Form F2 – Unfair Dismissal Application, Mr Bailey declared that he commenced employment with the Respondent on 12 February 2020 and was summarily dismissed from his employment on 28 March 2022. He noted that the reasons for the dismissal were not outlined in writing to him but received an Employee Separation Certificate stating that the reason for dismissal is “misconduct”. Mr Bailey contended this is unsubstantiated and incorrect.

The Respondent failed to file a Form F3 – Employer’s Response. A Commission staff member contacted Mr Scott Dwan, Director on 10 May 2022. The file note records Mr Dwan insisting that he does not need to complete a Form F3.

Upon the matter being allocated to me I listed the matter for a telephone conference. The only response I have received from the Respondent in these entire proceedings is Mr Dwan’s email of 26 May 2022 stating, “Unable to make this date as is the show holiday for the area”.

On account of the Respondent’s failure to complete a Form F3 and file material in accordance with directions issued by me, on 1 July 2022, the Respondent was informed of the following:

“The Commissioner advises that the hearing of this matter will proceed at 10:00am (AEST) Wednesday, 20 July 2022 by Microsoft Teams. If the Respondent does not participate in the hearing the matter will be heard in the Respondent’s absence.”

The matter was heard before me by video using Microsoft Teams on 20 July 2022. The Respondent did not attend the hearing, nor file any material at all despite numerous directions to do so. On 20 July 2022, my Associate made several attempts to contact the Respondent, without success. The hearing proceeded with Mr Bailey in attendance.

Relevant legislation

Section 394 of the Act sets out:

“394      Application for unfair dismissal remedy
(1)       A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2)       The application must be made:
(a)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 1946
Decision Date: 29 SEPTEMBER 2022

CaseChat Overview and Summary

Nicholas Bailey applied to the Fair Work Commission (FWC) for an unfair dismissal remedy against Octeros Manufacturing Pty Ltd. Bailey alleged he was dismissed without cause and that the dismissal was harsh, unjust, and unreasonable. The Commission found the dismissal to be unfair and ordered compensation. Bailey was employed as a Project Manager by Octeros Manufacturing Pty Ltd. He was dismissed on 28 March 2022, and the reason for the dismissal was stated as misconduct. Bailey denied the allegations and claimed the dismissal was without cause and unfair. The key legal issue was whether the dismissal was harsh, unjust, or unreasonable under s.387 of the Fair Work Act 2009. The Commission considered the criteria for determining if a dismissal is unfair, including whether there was a valid reason for the dismissal, whether the employee was notified of the reason, and whether there was an opportunity to respond. The Commission found that there was no valid reason for the dismissal, as the allegation of misconduct was unsubstantiated. Furthermore, Bailey was not given a proper opportunity to respond to the allegations, and the dismissal occurred without an investigation. The Commission concluded that the dismissal was harsh, unjust, and unreasonable, and ordered compensation of $44,692.30 to be paid to Bailey, along with superannuation.

Orders