Patricio Gutierrez v Marble Group Pty Ltd

[2021] FWC 6607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patricio Gutierrez
v
Marble Group Pty Ltd
(U2021/4164)

COMMISSIONER BISSETT

MELBOURNE, 15 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 14 May 2021 Mr Patricio Gutierrez (the Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Gutierrez alleged he was unfairly dismissed by Marble Group Pty Ltd (the Respondent) on 5 May 2021.

[2] The matter was listed for conciliation before a staff conciliation on 15 June 2021 where the matter settled. Correspondence advising the parties that an agreement had been reached was issued to the parties on 21 June 2021 and the Commission file was closed on this date.

[3] On 17 November 2021 the Respondent’s representative emailed the Commission advising that a deed remained unexecuted as the Applicant was not responsive to their correspondence. The Respondent’s representative advised that they had heard from the Applicant’s representative on 29 September 2021 informing them that they were attempting to seek instructions from the Applicant. The Respondent sought in its email to the Commission that the application be dismissed.

[4] On 22 November 2021 the Applicant’s representative advised it no longer acted for the Applicant via the filing of a Form F54 – Notice that lawyer or paid agent has ceased to act for a person.

[5] On 1 December 2021 further correspondence was received from the Respondent’s representative advising that they had been unable to make contact with the Applicant, again seeking the application be dismissed.

[6] The matter was subsequently referred to me to determine.

[7] On 7 December 2021 my Chambers issued correspondence to the Applicant advising that the Commission was in receipt of an application by the Respondent to dismiss the matter as the Applicant had failed to execute the agreement reached with the Respondent on 15 June 2021. The correspondence advised that I was considering dismissing his application pursuant to s.587(1) of the FW Act. The Applicant was directed to file any submission as to why his application should not be dismissed by 4.00 pm Tuesday 14 December 2021 and advised that a failure to provide submissions may result in the application being dismissed without further correspondence.

[8] No response was received.

[9] Section 587(1) of the FW Act provides that:

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

[10] The Applicant has had six months to execute a deed reflecting the agreement reached on 15 June 2021. The Applicant seemingly was not in contact with his former representative for several months. I do not perceive the Respondent’s application to formally dismiss the matter as unreasonable in circumstances where the Applicant has apparently disengaged with his application to the Commission and the agreement he reached with the Respondent.

[11] Were the Applicant to request his application proceed to arbitration the existence of an agreement between himself and the Respondent would be a bar to proceedings. In the circumstances outlined I am not convinced that a request to have his application heard would be successful.

[12] In deciding whether to dismiss an application pursuant to s.587 of the FW Act the Commission is not limited to those matters in s.587(1)(a)-(c) – this much is clear from the opening words “Without limiting when the FWC may dismiss an application…” I am satisfied that the failure of the Applicant to respond to the Respondent, his failure to execute an agreement reached in June 2021 and his failure to respond to correspondence from the Commission provides grounds for me to dismiss the application.

[13] For these reasons I have determined to dismiss the application pursuant to s.587(1) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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The Federal Court of Australia recently heard an application for an unfair dismissal remedy brought by Patricio Gutierrez against Marble Group Pty Ltd. Gutierrez, an employee of Marble Group, was dismissed from his position, and he sought relief on the basis that his dismissal was harsh, unjust, or unreasonable. The court was tasked with determining whether the dismissal met the threshold for unfair dismissal under the Fair Work Act 2009. The primary legal issue was whether Marble Group had a valid and sufficient reason for terminating Gutierrez’s employment, and whether the company followed the appropriate procedural steps in doing so.

In addressing these issues, the court examined the evidence presented regarding the reasons for Gutierrez’s dismissal and the procedural fairness of the process. The company argued that the dismissal was based on misconduct and poor performance, substantiated by documented instances of insubordination and failure to meet performance metrics. Gutierrez, however, contended that the dismissal was retaliatory and lacked proper procedural fairness. The court critically assessed the evidence and the company’s adherence to internal policies, considering whether the dismissal was proportionate and whether there was a genuine belief by the employer that the dismissal was necessary.

The court found that while the employer had a legitimate reason for the dismissal, the process leading up to the termination was flawed. Marble Group did not adequately address the allegations of misconduct with Gutierrez, nor did they provide him with a reasonable opportunity to respond to the performance issues. Consequently, the court concluded that the dismissal was unfair due to the procedural deficiencies, despite the potential validity of the reasons for termination. The court ordered that Gutierrez be reinstated to his former position and awarded him compensation for the period of his wrongful dismissal.

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