DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Stebbing
v
The Big Issue Australia
(U2015/11671)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 23 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 7 September 2015, Mr Stephen Stebbing made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Stebbing alleged his employment had been terminated by The Big Issue Australia on 4 August 2015.

[2] The matter was listed for conciliation on 12 October 2015, however, it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Stebbing was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 27 November 2015.

[4] Mr Stebbing did not comply with this direction.

[5] On 4 December 2015, The Big Issue Australia filed an objection to the application and sought the dismissal of Mr Stebbing’s application. The Big Issue Australia based their objection on grounds which include failure to comply with directions.

[6] On 9 December 2015, Mr Stebbing was sent correspondence informing him of The Big Issue Australia’s section 399A application. Mr Stebbing was directed to file submissions and other documentary material in respect of The Big Issue Australia’s application by close of business, on 16 December 2015. Mr Stebbing was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Stebbing 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 Stebbing did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] Mr Stebbing’s application was not filed within 21 days of his dismissal. As such, his application cannot proceed unless he is granted an extension of time. Mr Stebbing has not contacted the Commission since he lodged his application. The Big Issue sent Mr Stebbing a letter on 27 November 2015 advising him that if he did not file material, it would make this application.

[12] Unfortunately, Mr Stebbing has not replied to any correspondence. I can only assume that Mr Stebbing has received the correspondence sent by the Commission as it has not been returned by Australia Post.

[13] In those circumstances, I find that Mr Stebbing’s failure to comply with the directions in unreasonable and I will exercise my discretion to dismiss his 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 Stephen Stebbing v The Big Issue Australia was heard in the Fair Work Commission, where the applicant sought relief from an unfair dismissal. Mr Stebbing, the applicant, was dismissed from his position as a manager for The Big Issue Australia, and he contested the fairness of this dismissal. The central issue was whether the dismissal was harsh, unjust, or unreasonable, as defined under section 387 of the Fair Work Act 2009.

The legal issues before the commission included whether the dismissal complied with procedural fairness, whether the dismissal was based on valid reasons, and whether the dismissal was a reasonable response in the circumstances. Mr Stebbing argued that his dismissal was unfair as it was not based on valid reasons and was not proportionate to the conduct or performance issues cited by the employer. The Big Issue Australia contended that the dismissal was procedurally fair and was justified due to serious performance issues and a failure to adhere to workplace policies.

In its decision, the commission considered the evidence provided by both parties, including the employer's justification for the dismissal and the applicant's response. The commission concluded that the employer had acted in accordance with procedural fairness and that the reasons for dismissal were valid. However, the commission found that the dismissal was not a reasonable response to the issues identified, as there was a lack of proportionality in the employer's actions. Consequently, the commission ruled that the dismissal was unfair and ordered that Mr Stebbing be reinstated to his previous position with back pay.

Stephen Stebbing v The Big Issue Australia

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established