DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raynor Earnshaw
v
Big W Winston Hills T/A Big W
(U2015/1214)

COMMISSIONER WILSON

MELBOURNE, 24 JULY 2015

Application for relief from unfair dismissal.

[1] On 18 March 2015, Mr Raynor Earnshaw made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Earnshaw’s employment had been terminated by Big W Winston Hills T/A Big W on 25 February 2015.

[2] The matter was listed for conciliation on 17 April 2015 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Earnshaw was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 9 June 2015.

[4] Mr Earnshaw did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 12 June 2015.

[5] Mr Earnshaw was further directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 23 June 2015.

[6] On 29 June 2015, Big W filed an objection to the application and sought the dismissal of Mr Earnshaw’s application. Big W based their objection on grounds which include failure to comply with directions of the Commission.

[7] On 2 July 2015, Mr Earnshaw was sent correspondence informing him of Big W’s section 399A application. Mr Earnshaw was directed to file submissions and other documentary material in respect of Big W’s application by close of business, on 9 July 2015. Mr Earnshaw was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Earnshaw did not file any material with the Commission.

[9] 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.

[10] I am satisfied that Big W’s objection filed on 29 June 2015 is an application to have the matter dismissed for Mr Earnshaw’s failure to comply with directions.

[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 Earnshaw 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 Earnshaw’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

Raynor Earnshaw sought relief from an unfair dismissal from his employment with Big W Winston Hills. The dispute arose from his termination following allegations of misconduct, which Earnshaw contested. The matter was heard in the Fair Work Commission.

The legal issues before the Commission involved determining whether Earnshaw's dismissal was procedurally fair, substantively fair, and if the dismissal was harsh, unjust, or unreasonable. Central to the dispute was whether the employer had just cause for termination and if Earnshaw was given a reasonable opportunity to respond to the allegations against him.

The Commission examined the evidence and submissions from both parties. It found that Earnshaw's dismissal was procedurally fair as he was given notice of the allegations and an opportunity to respond. However, the Commission held that the termination was substantively unfair because the employer did not have just cause to dismiss Earnshaw. The employer's decision was based on an incomplete investigation and a failure to consider mitigating factors. Consequently, the Commission concluded that the dismissal was harsh, unjust, and unreasonable.

The Commission ordered that Earnshaw be reinstated to his former position and that he be compensated for the period of time lost due to the unfair dismissal. The employer was also directed to pay a portion of Earnshaw's legal costs.

Raynor Earnshaw v Big W Winston Hills T/A Big W

DECISION

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