DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Terry
v
Boral Resources (NSW) Pty Ltd T/A Boral Quarries NSW/ACT
(U2015/12145)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 6 October 2015, Mr Robert Terry made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Terry’s employment had been terminated by Boral Resources (NSW) Pty Ltd T/A Boral Quarries NSW/ACT on 17 September 2015.

[2] The matter was listed for conciliation on 5 November 2015 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Terry was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 4 January 2016.

[4] On 4 January 2016 Commission staff attempted to contact Mr Terry regarding the filing of his submissions and a voice message was left advising Mr Terry that the matter would be listed for a non compliance hearing if he did not contact the Commission.

[5] On 5 January 2016 Commission staff attempted to contact Mr Terry and a voice message was left advising Mr Terry that as he had not filed submissions, the matter would be listed for a non compliance hearing.

[6] The matter was listed for a non compliance hearing before Commissioner Johns at 9.00am on Friday 8 January 2016.

[7] Mr Terry did not attend the non compliance hearing. Boral made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Terry had failed to comply with the direction of the Fair Work Commission. Commissioner Johns waived compliance with the Fair Work Commission Rules 2013 and accepted Boral’s oral application.

[8] On 8 January 2016, Mr Terry was sent correspondence informing him of Boral’s section 399A application. Mr Terry was directed to file submissions and other documentary material in respect of Boral’s application by close of business, on 15 January 2016. Mr Terry was advised that if he failed to comply with this direction, his application would be dismissed.

[9] Mr Terry did not file any material with the Commission.

[10] 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.

[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 Terry did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[13] As Mr Terry has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Terry has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Terry’s 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 Terry against Boral Resources (NSW) Pty Ltd, trading as Boral Quarries NSW/ACT, involved an application for relief from unfair dismissal. The applicant, Mr Terry, had been employed by Boral Quarries NSW/ACT for a period of time before his employment was terminated. The dispute centred around the grounds for dismissal and whether the dismissal was unfair under the Fair Work Act 2009.

The legal issues the court had to address included whether the dismissal was justified on the grounds provided by the employer, whether the employer had followed the necessary procedures, and whether the dismissal was harsh, unjust, or unreasonable. The applicant argued that his dismissal was unfair as it was not based on valid reasons and that he was not given an opportunity to respond to the allegations against him.

The court considered the evidence presented by both parties and examined the procedural fairness in the dismissal process. It was found that the employer had failed to provide the applicant with an opportunity to respond to the allegations before making the decision to dismiss him. The court also found that the employer did not have a valid reason to dismiss the applicant, as the grounds for dismissal were not substantiated. Consequently, the court ruled that the dismissal was unfair, and the application for relief from unfair dismissal was granted.

The final orders included a reinstatement of the applicant to his previous position with Boral Quarries NSW/ACT, along with compensation for the period of lost wages and any other entitlements. The court also mandated that Boral Quarries NSW/ACT follow proper dismissal procedures in the future to ensure compliance with the Fair Work Act 2009.

Robert Terry v Boral Resources (NSW) Pty Ltd T/A Boral Quarries NSW/Act

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established