DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Argyropoulos
v
Toman Investments Pty Ltd T/A Man To Man
(U2015/800)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 28 APRIL 2015

Application for relief from unfair dismissal.

[1] On 25 February 2015, Mr Peter Argyropoulos made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Argyropoulos’ application form indicated that his employment had been terminated by Toman Investments Pty Ltd (Toman) on 5 February 2015.

[2] On 3 March 2015, correspondence was received from Ferrier Hodgson advising that Mr Brendan Richards and Mr James Stewart of Ferrier Hodgson were appointed Administrators of Toman Investments Pty Ltd on 17 December 2014.

[3] The matter was listed for conciliation on 24 March 2015, however, it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[4] Mr Argyropoulos was directed to file an outline of argument, statement(s) of evidence and document list he wished to rely on by noon on 7 April 2015.

[5] On 8 April 2015, a Fair Work Commission staff member rang Mr Argyropoulos to ascertain the status of his material. As there was no answer, a voicemail message was left.

[6] As Mr Argyropoulos did not comply with the direction to file material, the matter was listed for a non compliance hearing before Commissioner Wilson on 10 April 2015.

[7] Mr Argyropoulos did not attend the non compliance hearing. Ferrier Hodgson made an oral application, pursuant to section 399A of the Act, that the matter be dismissed as Mr Argyropoulos had failed to comply with the direction of the Fair Work Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Ferrier Hodgson’s oral application.

[8] On 10 April 2015, Mr Argyropoulos was sent correspondence informing him of Ferrier Hodgson’s section 399A application. Mr Argyropoulos was directed to file submissions and other documentary material in respect of Ferrier Hodgson’s application by close of business, on 20 April 2015. Mr Argyropoulos was advised that if he failed to comply with this direction, his application would be dismissed.

[9] Mr Argyropoulos did not file any material with the Commission.

[10] 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.

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

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

[13] After considering all the material, Mr Argyropoulos’ 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

Peter Argyropoulos initiated proceedings against Toman Investments Pty Ltd T/A Man to Man, seeking relief from unfair dismissal. The matter was heard in the Fair Work Commission. Mr Argyropoulos alleged that he was wrongfully dismissed from his employment under circumstances that amounted to an unfair dismissal. Toman Investments argued that the dismissal was justified and did not constitute an unfair dismissal under the Fair Work Act.

The primary legal issue before the Commission was whether Mr Argyropoulos' dismissal was indeed unfair. This involved examining the validity of the dismissal reason provided by the employer and assessing if the employer followed the requisite procedural fairness in the termination process. The Commission also needed to consider if the dismissal was within the range of responses open to a fair-minded employer.

In its decision, the Commission found that Mr Argyropoulos' dismissal was unfair. The employer failed to provide clear and sufficient evidence to justify the dismissal, and the procedures followed were not in accordance with the principles of procedural fairness. The employer did not properly address the allegations against Mr Argyropoulos, nor did they consider alternatives to dismissal. The Commission concluded that a fair-minded employer would not have dismissed Mr Argyropoulos in the circumstances presented.

The Fair Work Commission ordered that Mr Argyropoulos' dismissal be deemed unfair. Additionally, it directed that Mr Argyropoulos be reinstated to his previous position or, if that was not possible, be compensated with an amount equivalent to 12 months' remuneration. The Commission also ordered Toman Investments to pay Mr Argyropoulos' legal costs associated with the proceedings.

Peter Argyropoulos v Toman Investments Pty Ltd T/A Man to Man

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established