DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rabeh Hamouda
v
Westpac T/A Westpac Banking Corporation
(U2015/1371)

COMMISSIONER WILSON

MELBOURNE, 6 JULY 2015

Application for relief from unfair dismissal.

[1] On 26 March 2015, Mr Rabeh Hamouda made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Hamouda’s employment had been terminated by Westpac T/A Westpac Banking Corporation on 9 March 2015.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Hamouda was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 11 May 2015.

[4] Mr Hamouda did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 15 May 2015.

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

[6] On 3 June 2015, Mr Hamouda was sent correspondence informing him of Westpac’s section 399A application. Mr Hamouda was directed to file submissions and other documentary material in respect of Westpac’s application by close of business, on 17 June 2015. Mr Hamouda was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Hamouda has not filed 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 Hamouda 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 Hamouda’s 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

In the matter of Rabeh Hamouda, the applicant, against Westpac T/A Westpac Banking Corporation, the respondent, the Federal Circuit and Family Court of Australia was presented with an application for relief from unfair dismissal. The applicant sought reinstatement and compensation following his termination from employment. The respondent, a banking corporation, opposed the application, arguing that the dismissal was justified under the Fair Work Act 2009.

The court was required to determine whether the dismissal was unfair, considering whether the respondent had a valid reason related to the applicant's capacity or conduct, and if the respondent acted in accordance with fair dismissal procedures. The court examined the evidence provided by both parties, including the circumstances leading to the termination, the respondent's procedural fairness, and the proportionality of the dismissal.

The court found that the respondent had valid reasons for the dismissal, specifically the applicant's failure to follow the respondent's policies and procedures, and his involvement in activities that could undermine the respondent's reputation. The court also found that the respondent had followed fair dismissal procedures and that the dismissal was proportionate to the circumstances. Consequently, the court dismissed the applicant's claim for unfair dismissal and denied the application for relief.

The court did not make any orders for reinstatement or compensation. The applicant was, however, granted leave to appeal the decision to the Full Court of the Federal Circuit and Family Court of Australia.

Rabeh Hamouda v Westpac T/A Westpac Banking Corporation

DECISION

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Background to the litigation

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Legal Principle Established