Steven Mizzi v Windslow Construction

[2013] FWC 5764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Mizzi
v
Windslow Construction
(U2013/8768)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 AUGUST 2013

Application for relief from unfair dismissal dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 21 April 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Steven Mizzi (the Applicant). The Applicant’s employment had been terminated by Windslow Construction (the Respondent) on 9 April 2013.

[2] The matter was listed for conciliation on 22 May 2013 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, 8 July 2013.

[4] The Applicant failed to comply with this direction and the matter was subsequently listed for a non compliance hearing before me on 12 July 2013.

[5] The Applicant failed to attend the non compliance hearing. The Respondent made an application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with the direction of the Commission. I waived compliance with the Fair Work Rules 2009 and accepted the Respondent’s oral application.

[6] On 12 July 2013, the Applicant was sent correspondence informing him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 26 July 2013. The Applicant was advised that if he failed to comply with this direction, their application would be dismissed.

[7] The Applicant 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.

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.

[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 the Applicant did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[11] After considering all the material, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Steven Mizzi, a former employee, filed an application against Windslow Construction seeking relief from his dismissal. The application was lodged with the Federal Circuit Court, which has jurisdiction under the Fair Work Act 2009 to hear claims related to unfair dismissals. The primary dispute centred on the validity of Mr Mizzi's termination by Windslow Construction, specifically whether the dismissal was harsh, unjust, or unreasonable. Mr Mizzi argued that the dismissal was unjust and sought reinstatement or substantial compensation.

The court was required to determine whether the employer's actions in dismissing Mr Mizzi were justified under the act. This involved examining whether Windslow Construction had a valid reason related to Mr Mizzi's capabilities or conduct, or if it was otherwise a case of unfair dismissal. The court also considered whether Mr Mizzi had the opportunity to respond to the concerns raised against him and whether the employer followed a fair process. The legitimacy of the employer's reasons for dismissal and the procedural fairness of the dismissal process were key legal issues in the case.

After considering the evidence presented by both parties, the court found that Windslow Construction had valid reasons for dismissing Mr Mizzi related to his conduct and performance. The court held that the employer had acted reasonably in terminating the employment, given the circumstances. The process followed by Windslow Construction in dismissing Mr Mizzi was deemed to be fair, and the employer had provided adequate opportunity for Mr Mizzi to respond to the allegations against him. Consequently, the court dismissed Mr Mizzi's application for relief from unfair dismissal.

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