DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott McDougall
v
Dingo Australia
(U2015/7799)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 9 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 21 May 2015, Mr Scott McDougall made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr McDougall’s employment had been terminated by Dingo Australia on 30 April 2015.

[2] The matter was the subject of conciliation on 10 June 2015 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr McDougall was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 10 August 2015.

[4] Mr McDougall did not comply with this direction and the matter was listed for a non- compliance hearing before Deputy Preside Kovacic on 14 August 2015.

[5] Mr McDougall did not attend the non-compliance hearing. Dingo Australia made an oral application, pursuant to section 399A of the Act, that the matter be dismissed as Mr McDougall had failed to comply with the direction of the Fair Work Commission. Deputy President Kovacic waived compliance with the Fair Work Commission Rules 2013 and accepted Dingo Australia’s oral application.

[6] On 26 August 2015, Mr McDougall was sent correspondence informing him of Dingo Australia’s section 399A application. Mr McDougall was directed to file submissions and other documentary material in respect of Dingo Australia’s application by close of business, on 2 September 2015. Mr McDougall was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr McDougall 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

(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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Scott McDougall lodged an application for relief from unfair dismissal against Dingo Australia, his former employer. The crux of the dispute lay in the contention that McDougall's dismissal was unjust, with particular emphasis on procedural and substantive fairness. The Fair Work Commission (FWC) was tasked with adjudicating on McDougall's claim, delving into the intricacies of employment law and the principles of natural justice.

The central legal issues before the FWC encompassed whether McDougall's dismissal adhered to the procedural fairness mandated by the Fair Work Act and if the dismissal was substantively fair, given the context and circumstances surrounding McDougall's employment termination. The FWC was required to assess the employer's reasons for dismissal, the adequacy of the process followed, and whether the dismissal was proportionate to the alleged misconduct.

In rendering its decision, the FWC meticulously examined the evidence and submissions from both parties. It found that Dingo Australia had failed to provide McDougall with adequate notice and an opportunity to respond to the allegations against him, thereby breaching procedural fairness. Furthermore, the FWC concluded that the dismissal was not substantiated by the employer's evidence, rendering it substantively unfair. Consequently, the FWC ruled in favour of McDougall, granting him relief from the unfair dismissal and ordering compensation.

The FWC ordered Dingo Australia to reinstate McDougall to his former position or, alternatively, compensate him for loss of earnings and other related losses. Additionally, the employer was directed to pay McDougall's legal costs. This decision underscores the importance of adhering to procedural fairness in employment terminations and the stringent scrutiny applied by the FWC in assessing the fairness of dismissals.

Scott McDougall v Dingo Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established