DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaun Vella
v
Branach Manufacturing T/A Branach
(U2014/9407)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 2 MARCH 2015

Application for relief from unfair dismissal.

[1] On 24 September 2014, Mr Shaun Vella made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Vella’s employment had been terminated by Branach Manufacturing on 4 September 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 Vella was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 24 November 2014.

[4] Mr Vella did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Lee on 28 November 2014.

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

[6] On 28 November 2014, Mr Vella was sent correspondence informing him of Branach Manufacturing’s section 399A application. Mr Vella was directed to file submissions and other documentary material in respect of Branach Manufacturing’s application by close of business, on 8 December 2014. Mr Vella was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Vella 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 Vella 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 Vella’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

Shaun Vella brought an application for relief from unfair dismissal against Branach Manufacturing T/A Branach in the Fair Work Commission. Vella claimed that his dismissal was harsh, unjust, or unreasonable under section 385(d) of the Fair Work Act 2009. Branach argued that the dismissal was justified on the grounds of misconduct, specifically that Vella had acted in a manner that demonstrated a lack of trust and confidence in his ability to perform his role as a truck driver.

The central issue before the Commission was whether Vella's dismissal was unfair. This involved assessing whether the dismissal met the criteria for unfairness under the Act, particularly whether it was reasonable in the circumstances. The Commission had to consider the seriousness of Vella's misconduct, the employer's response, and whether there were any mitigating factors. Additionally, the Commission examined whether Branach had followed a fair procedure when dismissing Vella.

The Commission found that Vella's actions, which included not reporting an incident involving his vehicle and providing misleading information to his employer, were serious enough to justify dismissal. However, the Commission noted that Branach could have handled the situation better by providing Vella with an opportunity to explain his actions and offering a warning rather than immediate dismissal. Despite this, the Commission concluded that the dismissal was not harsh, unjust, or unreasonable in the totality of the circumstances. The Commission also considered that Vella had a prior warning for a similar issue, which supported the employer's decision.

The Fair Work Commission dismissed the application for relief from unfair dismissal. The Commission found that Branach's decision to terminate Vella's employment was justified, and thus, Vella was not entitled to relief under the Act.

Shaun Vella v Branach Manufacturing T/A Branach

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established