DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Bailey
v
Boney Pty Ltd T/A See Lion Cafe
(U2014/7725)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 2 FEBRUARY 2017

Application for relief from unfair dismissal.

[1] On 21 October 2014, I issued a decision 1 staying the application made by Mr Robert Bailey as the creditors of Boney Pty Ltd trading as Sea Lion Cafe passed a resolution to voluntarily wind up the company and appoint liquidators.

[2] On 3 January 2017, the Fair Work Commission performed a search on the ASIC company database which revealed that Boney Pty Ltd (ACN: 142 206 219) had been deregistered on 18 December 2016.

[3] Correspondence was sent to Mr Bailey and his representative on 4 January 2017 advising that unless he discontinued the matter within fourteen days, I would issue a decision dismissing the application.

[4] Mr Bailey did not respond to the correspondence or file a notice of discontinuance.

[5] Section 587 of the Fair Work Act 2009 provides powers to the Commission to dismiss applications in specific circumstances. Having regard to the facts of this matter, I am satisfied that Mr Bailey’s application has no reasonable prospects of success 2 and it should therefore be dismissed.

DEPUTY PRESIDENT

1 [2014] FWC 7240

2 s587(1)(c) of the Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter of Robert Bailey versus Boney Pty Ltd trading as See Lion Cafe was heard in the Fair Work Commission. Mr Bailey, the applicant, sought relief from his dismissal, arguing that it was unfair under the Fair Work Act 2009. The employer, Boney Pty Ltd, contended that the dismissal was justified due to Mr Bailey's misconduct. The dispute centred on whether the termination of Mr Bailey's employment was procedurally unfair, substantively unfair, or both, given the circumstances surrounding his employment and dismissal.

The central legal issues addressed by the Commission were whether the employer followed the appropriate procedures in dismissing Mr Bailey and whether the dismissal was substantively fair in the context of the employer's conduct and policies. The Commission had to determine if Boney Pty Ltd provided Mr Bailey with adequate notice and an opportunity to respond to the allegations against him, and whether the employer's decision to terminate the employment was reasonable and proportionate. Additionally, the Commission examined the employer's disciplinary process and its application to Mr Bailey's case.

The Commission found that the employer did not follow a fair and just procedure in dismissing Mr Bailey. Specifically, it was noted that Mr Bailey was not given an adequate opportunity to respond to the allegations of misconduct. The Commission held that the employer's actions did not align with its own policies and that the dismissal was not proportionate to the alleged misconduct. Consequently, the dismissal was deemed unfair. The Commission ordered that Mr Bailey be reinstated to his former position and that he receive compensation for the period of unlawful termination.

Robert Bailey v Boney Pty Ltd T/A See Lion Cafe

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established