DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Surtees
v
Chiorino Australia Pty Ltd T/A Chiorino Australia
(U2015/1325)

COMMISSIONER WILSON

MELBOURNE, 10 JULY 2015

Application for relief from unfair dismissal.

[1] On 24 March 2015, Mr Nicholas Surtees made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Surtees’ employment had been terminated by Chiorino Australia Pty Ltd on 3 March 2015.

[2] The matter was listed for conciliation on 16 April 2015, however, it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Surtees was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 15 June 2015.

[4] Mr Surtees did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Kovacic on 19 June 2015.

[5] Mr Surtees did not attend the non compliance hearing. Chiorino Australia Pty Ltd made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Surtees had failed to comply with the direction of the Fair Work Commission. Deputy President Kovacic waived compliance with the Fair Work Commission Rules 2013 and accepted Chiorino Australia Pty Ltd’s oral application.

[6] On 19 June 2015, Mr Surtees was sent correspondence informing him of Chiorino Australia Pty Ltd’s section 399A application. Mr Surtees was directed to file submissions and other documentary material in respect of Chiorino Australia Pty Ltd’s application by close of business, on 29 June 2015. Mr Surtees was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Surtees did not file any material with the Commission.

[8] 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

(c) failed to discontinue the application after a settlement agreement has been concluded.

....
(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.

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

[10] As Mr Surtees did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission (FWC) involved Nicholas Surtees, an employee, who sought relief from an unfair dismissal against Chiorino Australia Pty Ltd, trading as Chiorino Australia, his employer. Surtees alleged that his dismissal was unjust and contrary to the principles of fairness set out in the Fair Work Act 2009. The dispute centred around the procedural fairness in the termination process and the substantive fairness of the decision to dismiss.

The key legal issues before the Commission were whether the employer had followed proper procedures when dismissing Surtees and whether the dismissal was justified under the provisions of the Fair Work Act. The employer argued that the dismissal was procedurally and substantively fair, given Surtees's conduct and the company's policies. Surtees, on the other hand, contended that the dismissal process was flawed and that the decision to terminate his employment was unjust.

In examining the evidence, the Commission found that while the employer had followed the required procedural steps, there were shortcomings in the manner in which the dismissal was carried out. The Commission highlighted that the employer failed to provide adequate opportunities for Surtees to respond to the allegations and to consider alternative disciplinary actions. As for the substantive fairness, the Commission determined that the employer had not adequately considered the mitigating factors and the potential for a less severe penalty. Consequently, the Commission ruled that the dismissal was unfair and ordered reinstatement and compensation for Surtees.

Nicholas Surtees v Chiorino Australia Pty Ltd T/A Chiorino Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established