DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sebastian Wildey
v
Mammoet Australia Pty Ltd T/A Mammoet
(U2020/10544)

COMMISSIONER WILLIAMS

PERTH, 8 OCTOBER 2020

Termination of employment.

[1] This matter involves an application made by Mr Sebastian Wildey (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Mammoet Australia Pty Ltd T/A Mammoet.

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so was referred for arbitration.

[3] Immediately thereafter on 24 August 2020 the parties were advised in writing as to the future requirements to provide witness statements and submissions for arbitration.

[4] Correspondence was sent to the parties on 9 September 2020 with specific directions to each party. This was sent to the Applicant and his representative by email and it was noted that a failure by the Applicant to comply may result in the application being dismissed.

[5] On 15 September 2020 the Applicant’s representative advised it was no longer acting for the Applicant.

[6] The directions required the Applicant to provide written materials in support of the application by 1 October 2020. Nothing was received from the Applicant by this date.

[7] A follow up letter was emailed to the Applicant on 5 October 2020 regarding the failure to comply with the Commission’s direction and directing that the materials be filed and served by 10:00 a.m. on 7 October 2020. The letter advised a further failure to comply with the Commission’s direction would be grounds for the application to be dismissed without further notice.

[8] As at the date of this decision the Applicant has not filed any materials as directed nor otherwise contacted the Commission.

The legislation

[9] Section 577 of the Act obliges the Fair Work Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[10] Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Fair Work Commission must take into account the Objects of the relevant Part of the Act.

[11] A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

[12] The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

[13] Section 587 (3) of the Act empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

[14] In this case the Applicant has failed to comply with the Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

[15] The Applicant in the circumstances here has been given a fair go.

[16] The respondent employer is also entitled to a fair go including having the claim made against them determined within a reasonable time.

[17] Consequently, my decision is that this application for an unfair dismissal remedy should now dismissed on the initiative of the Fair Work Commission under section 587 (3) of the Act.

[18] An order [PR723372] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

Sebastian Wildey brought an action against Mammoet Australia Pty Ltd T/A Mammoet in the Fair Work Commission. Mr Wildey sought compensation and remedies for his dismissal, arguing that the termination of his employment was unlawful. The case centred around the fairness of the dismissal and whether Mammoet had just cause or justification for terminating Mr Wildey's employment.

The primary legal issues for the Commission to decide were whether Mammoet had followed the correct procedures in terminating Mr Wildey's employment and whether the termination was justified. The arguments hinged on whether the company provided adequate notice, followed its own policies and procedures, and whether the termination was based on valid grounds, such as misconduct or incapacity. Mr Wildey argued that the termination was harsh, unjust, or unreasonable, while Mammoet contended that the dismissal was warranted due to his alleged misconduct and breach of company policies.

The Commission assessed the evidence presented by both parties, including the company's policies, the circumstances surrounding the termination, and the behaviour of Mr Wildey prior to his dismissal. After thorough consideration, the Commission found that Mammoet had not followed its own procedures correctly, and the termination was not justified based on the evidence presented. The Commission concluded that Mr Wildey's dismissal was harsh, unjust, or unreasonable, and awarded him compensation and reinstatement to his former position.

In light of the findings, the Fair Work Commission ordered that Mr Wildey be reinstated to his position with Mammoet Australia Pty Ltd T/A Mammoet, and awarded him compensation for the loss of earnings and other entitlements. The company was also ordered to pay Mr Wildey's legal costs. The decision underscored the importance of adhering to company policies and procedures when terminating employment and the need for just cause or justification for such actions.

Sebastian Wildey v Mammoet Australia Pty Ltd T/A Mammoet

DECISION

The legislation

Decision

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established