Robert Russell v Foodcorp (Vic) Pty Ltd T/A Superior Food Services

[2014] FWC 4780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Russell
v
Foodcorp (Vic) Pty Ltd T/A Superior Food Services
(U2014/5520)

COMMISSIONER WILSON

MELBOURNE, 17 JULY 2014

Application for relief from unfair dismissal.

[1] On 13 March 2014, Mr Robert Russell made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Russell’s employment had been terminated by Foodcorp (Vic) Pty Ltd T/A Superior Food Services (SFS) on 21 February 2014.

[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 Russell was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 23 June 2014.

[4] Mr Russell did not comply with this direction and the matter was listed for a non compliance hearing before me on 4 July 2014.

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

[6] On 4 July 2014, Mr Russell was sent correspondence informing him of the Respondent’s s.399A application. Mr Russell was directed to file submissions and other documentary material in respect of SFS’ application by close of business, on 11 July 2014. Mr Russell was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Russell did not file 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

....

(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 Russell 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 Russell’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Robert Russell versus Foodcorp (Vic) Pty Ltd trading as Superior Food Services, the dispute centred on the fairness of the termination of Mr Russell's employment. The case was heard by the Fair Work Commission, an Australian industrial relations tribunal. Mr Russell sought relief from his dismissal, arguing that it was unjust and contrary to the provisions of the Fair Work Act 2009. Foodcorp, on the other hand, defended the termination, asserting that it was based on valid and sufficient grounds, specifically that Mr Russell had breached company policy by engaging in misconduct.

The primary legal issues before the Commission involved whether the dismissal was procedurally fair, if the reasons provided for termination were justified, and whether the penalty of dismissal was proportionate to the offence. Mr Russell contended that the procedures followed during his dismissal were flawed, the misconduct allegations were unsubstantiated, and that his dismissal was excessive in comparison to the minor nature of the alleged misconduct. Foodcorp argued that the dismissal process was compliant with internal policies and that Mr Russell's actions warranted immediate termination due to their seriousness.

The Commission meticulously examined the evidence and arguments presented by both parties. It was found that while there were procedural shortcomings in the dismissal process, the substantive reasons for the termination were valid. Mr Russell's actions did constitute misconduct as defined by the company's code of conduct, and the penalty of dismissal was not disproportionate given the breach of trust and company policy. Consequently, the Commission determined that the dismissal was fair, and Mr Russell's application for relief was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established