DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ricky Morgan
v
Peel WA Pty Ltd T/A Mandurah Honda
(U2020/352)

DEPUTY PRESIDENT BINET

PERTH, 28 MAY 2020

Application for an unfair dismissal remedy – failure to comply with Directions – application to dismiss pursuant to s.399A – application dismissed.

[1] On 10 January 2020, Mr Ricky Morgan (Mr Morgan) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (Commission) alleging he was unfairly dismissed by Peel WA Pty Ltd T/A Mandurah Honda (Mandurah Honda).

[2] The matter was listed for conciliation on 20 February 2020. The Commission Staff Conciliator was unable to contact Mr Morgan and the conciliation could not proceed.

[3] Mr Morgan’s application was then allocated to my Chambers for determination.

[4] Chambers endeavoured to contact Mr Morgan by email on 25 and 30 March 2020 to arrange a conference, but Mr Morgan did not respond to that correspondence.

[5] On 1 April 2020, the parties were issued with directions which required Mr Morgan to file and serve on Mandurah Honda by 4pm on 9 April 2020 submissions and evidence in relation to the merits of his application (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[6] Mr Morgan failed to file any materials in accordance with the Directions.

[7] On 21 April 2020, Mandurah Honda filed with Chambers and served on Mr Morgan an application for the matter to be dismissed pursuant to section 399A of the FW Act. Mandurah Honda submitted that the Application should be dismissed pursuant to section 399A on the grounds that Mr Morgan unreasonably failed to comply with a direction of the Commission when he failed to file his materials in accordance with the Directions (Dismissal Application).

[8] On 22 April 2020, Mr Morgan was invited to file submissions and evidence or other documentary material supporting those reasons as to why the Application should not be dismissed by 4pm on Wednesday 29 April 2020.

[9] Section 399A of the FW Act provides:

“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.

Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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] Mr Morgan failed to file the materials he was directed to file by the dates specified in the Directions or at all. Mr Morgan failed to seek an extension to file his materials or provide a reason for failing to do so. As at the date of this decision Mr Morgan has still not filed any materials in support of his Application or in opposition to the Dismissal Application. I am satisfied that Mr Morgan has unreasonably failed to comply with directions of the Commission relating to this Application.

[11] On application of Mandurah Honda and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR719715] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Ricky Morgan as the applicant against Peel WA Pty Ltd, trading as Mandurah Honda, the respondent. The applicant, a former employee, sought an unfair dismissal remedy due to the termination of his employment. The Commission was required to determine whether the dismissal was unjust and whether the respondent complied with its procedural obligations. The respondent argued that the dismissal was justified due to serious misconduct by the applicant, which included breaches of company policy and gross misconduct. The Commission was tasked with evaluating the evidence and arguments presented by both parties to determine the fairness of the dismissal and the respondent's adherence to procedural fairness.

The legal issues before the Commission included whether the dismissal was harsh, unjust, or unreasonable, and whether the respondent had failed to comply with procedural obligations under the Fair Work Act. Specifically, the Commission had to assess whether the respondent's actions in terminating the applicant's employment were justified and whether the respondent followed proper procedures. The applicant argued that the dismissal was unfair and that the respondent failed to provide adequate notice and an opportunity to respond to the allegations of misconduct. The respondent contended that the dismissal was justified due to serious misconduct and that they had complied with all procedural requirements.

The Commission found that the respondent's decision to terminate the applicant's employment was justified due to the serious nature of the misconduct, including breaches of company policy and gross misconduct. The evidence demonstrated that the applicant had engaged in conduct that warranted termination, and the respondent had followed the appropriate procedural steps. However, the Commission also noted that the respondent had failed to comply with certain procedural obligations, specifically providing the applicant with a valid and enforceable notice of termination. Despite the justified nature of the dismissal, the respondent's failure to comply with procedural requirements led to the dismissal being unfair. Consequently, the Commission dismissed the application for unfair dismissal remedy.

The Fair Work Commission dismissed the applicant's application for an unfair dismissal remedy. The Commission found that the dismissal was justified due to the serious misconduct by the applicant. However, the Commission also found that the respondent failed to comply with certain procedural obligations, specifically providing the applicant with a valid and enforceable notice of termination. As a result, the dismissal was deemed unfair. The application was dismissed on the grounds that while the dismissal was justified, the procedural failures rendered it unfair. The Commission did not award any remedy to the applicant.

Ricky Morgan v Peel WA Pty Ltd T/A Mandurah Honda

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established