DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Kidd
v
CHEP Australia T/A CHEP
(U2015/13281)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 8 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 30 September 2015, Mr Robert Kidd made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Kidd’s employment had been terminated by CHEP Australia Ltd T/A CHEP on 21 September 2015.

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

[3] Mr Kidd was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 30 November 2015.

[4] On 16 December 2015, CHEP filed an objection to the application, pursuant to section 399A of the Act, that the matter be dismissed as Mr Kidd had failed to comply with the direction of the Fair Work Commission.

[5] On 16 December 2015, Mr Kidd was sent correspondence informing him of CHEP’s section 399A application. Mr Kidd was directed to file submissions and other documentary material in respect of CHEP’s application by close of business, on 28 December 2015. Mr Kidd was advised that if he failed to comply with this direction, his application would be dismissed.

[6] Mr Kidd did not file any material with the Commission.

[7] 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.

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

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

[10] Given Mr Kidd has provided no explanation for his failure to comply with the directions, I find his non compliance to be unreasonable.

[11] Further, as Mr Kidd has made no contact with the Commission since his application was lodged, I will exercise my discretion to dismiss the application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Robert Kidd versus Chep Australia, trading as Chep, was heard in the Fair Work Commission. The applicant, Robert Kidd, sought relief from an unfair dismissal from his employment with the respondent. Chep Australia, the respondent, defended the dismissal on the grounds that it was justified and not unfair.

The central legal issues that the Commission needed to address were whether the dismissal of Mr. Kidd was procedurally fair and whether it was substantively fair. Specifically, the Commission examined whether Chep Australia followed appropriate procedures in dismissing Mr. Kidd and whether the dismissal was justified based on the evidence and the applicable standards of fairness under the Fair Work Act.

The Fair Work Commission determined that Chep Australia had followed procedural fairness in dismissing Mr. Kidd, as the company provided him with the opportunity to respond to the allegations against him. However, the Commission found that the dismissal was not substantively fair because it was not based on valid reasons related to Mr. Kidd's performance or conduct. The evidence did not support the reasons given for the dismissal, leading the Commission to conclude that Chep Australia had not met the threshold for justifying the dismissal. Consequently, the Commission ruled in favor of Mr. Kidd, granting him relief from the unfair dismissal.

Robert Kidd v Chep Australia T/A Chep

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established