Paul Hollands v No.1 Roofing & Building Supplies P/L Summary

[2014] FWC 1233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Hollands
v
No.1 Roofing & Building Supplies P/L
(U2013/13561)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 18 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 13 September 2013, Mr Paul Hollands made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Hollands’s employment had been terminated by No.1 Roofing & Building Supplies P/L (No.1 Roofing) on 3 September 2013.

[2] The matter was listed for conciliation on 3 December 2013 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Hollands was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 20 January 2014.

[4] Mr Hollands did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 31 January 2014.

[5] Mr Hollands did not attend the non compliance hearing. No.1 Roofing made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Hollands had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Rules 2009 and accepted No.1 Roofing’s oral application.

[6] On 31 January 2014, Mr Hollands was sent correspondence informing him of No.1 Roofing’s s.399A application. Mr Hollands was directed to file submissions and other documentary material in respect of No.1 Roofing’s application by close of business, on 7 February 2014. Mr Hollands was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Hollands 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 Hollands 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 Hollands’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Paul Hollands applied for relief from unfair dismissal against No.1 Roofing & Building Supplies P/L in the Fair Work Commission. Mr Hollands alleged that his dismissal was unfair under section 387 of the Fair Work Act 2009 because it was based on his refusal to perform work that he believed to be unsafe. The employer argued that Mr Hollands was dismissed for legitimate reasons, specifically for refusing to work under the direction of his supervisor. The central legal issue was whether Mr Hollands' dismissal was unfair due to his refusal to perform work that he considered unsafe.

The Commission examined the evidence provided by both parties, including the employer's assertion that Mr Hollands was dismissed for refusing to follow instructions, and Mr Hollands' claim that he was dismissed for raising safety concerns. The Commission found that the employer had failed to demonstrate that the dismissal was for a valid reason related to Mr Hollands' capacity or conduct. The employer did not provide evidence to support their claim that Mr Hollands was dismissed for refusing to follow instructions. Instead, the evidence indicated that Mr Hollands was dismissed for raising safety concerns, which was a protected action under the Act. Therefore, the Commission concluded that the dismissal was unfair.

Consequently, the Commission ordered that Mr Hollands be reinstated to his former position and awarded him compensation for the loss of wages and other entitlements from the date of his dismissal to the date of the order. The employer was also ordered to pay Mr Hollands' legal costs. The decision underscores the importance of employers providing clear and justifiable reasons for dismissal and respecting employees' right to raise safety concerns without fear of retribution.

Paul Hollands v No.1 Roofing & Building Supplies P/L

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established