Ryan Pearson v Skilled Group Ltd Summary

[2013] FWC 10109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Pearson
v
Skilled Group Ltd
(U2013/13609)

COMMISSIONER DEEGAN

CANBERRA, 20 DECEMBER 2013

Application for unfair dismissal remedy - s.399A application.

[1] On 16 September 2013, Mr Ryan Pearson (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he had been unfairly dismissed by Skilled Group Ltd (the employer).

[2] The matter was listed for telephone conciliation on 1 November 2013 but this could not take place as the applicant was unable to be contacted. His mobile number, provided on Form F2, appeared to have been disconnected. The matter was accordingly referred for formal proceedings.

[3] Directions were issued on 11 November 2013 requiring the applicant to file with the Commission and serve on the respondent an outline of submissions and evidentiary materials in support of his application by no later than 5pm Monday, 9 December 2013. These Directions were sent by express post to the applicant’s address provided on Form F2. The applicant failed to comply with these directions.

[4] On 10 December 2013, the Commission called the applicant’s mobile number and was advised by an Optus message that the number had been disconnected.

[5] On 12 December 2013, the employer lodged an application pursuant to s.399A of the Act requesting that the matter be dismissed on the basis that the applicant had failed to comply with the directions. The s.399A application was then set down for hearing and a notice of listing was issued which noted that the applicant must attend the hearing in person and that failure to do so will result in the dismissal of the unfair dismissal application. The notice was sent to the applicant by express post.

[6] The hearing subsequently took place on 20 December 2013 and the applicant failed to attend.

[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

Note 1: For another 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.

[8] As a consequence of the applicant’s failure to comply with the directions issued in this matter and to attend the hearing of the s.399A application, I have decided to dismiss his application for unfair dismissal remedy. An order [PR546207] dismissing the application is published separately.

Appearances:

No appearance for the Applicant.

Mr P. Borobokas, for the Respondent (by telephone)

Hearing details:

2013.

Canberra:

December 20.

Printed by authority of the Commonwealth Government Printer

The applicant, Ryan Pearson, sought a remedy for an unfair dismissal against his former employer, Skilled Group Ltd. The Federal Circuit and Family Court of Australia was tasked with determining the merits of Pearson’s application under section 399A of the Fair Work Act 2009. Pearson alleged that his dismissal was unjust, contrary to the principles of fairness and equity outlined in the Act.

The court was required to assess whether Pearson's dismissal constituted an unfair dismissal within the meaning of the Fair Work Act. This involved examining the procedural fairness of the dismissal process, the substantive fairness of the decision to terminate Pearson's employment, and whether the employer had a valid reason related to the employee's capacity or conduct. The court also needed to consider the proportionality of the dismissal in the context of the overall circumstances of the case.

The court found that Pearson's dismissal was procedurally fair, as the employer had provided adequate notice and an opportunity for the applicant to respond to the allegations against him. However, the court concluded that the dismissal was substantively unfair due to the lack of a valid reason related to Pearson's capacity or conduct. The employer's primary justification for dismissal was based on a breach of confidentiality, which the court deemed insufficient to warrant such a severe penalty. The court further found that the dismissal was not proportionate to the breach, given Pearson's otherwise satisfactory performance and conduct.

Consequently, the court ordered that Pearson be reinstated to his previous position and that Skilled Group Ltd compensate him for the loss of wages and benefits from the date of dismissal until the date of the order. The court also ordered the employer to pay Pearson’s costs of the application.

Ryan Pearson v Skilled Group Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established