Tony Davis v Apricus Australia Pty Ltd Summary

[2013] FWC 4796

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony Davis
v
Apricus Australia Pty Ltd
(U2013/7347)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 19 JULY 2013

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

[1] On 11 March 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Tony Davis (the Applicant). The Applicant’s employment had been terminated by Apricus Australia Pty Ltd (the Respondent) on 18 February 2013.

[2] The matter was listed for conciliation 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 he wished to rely on by noon, 24 June 2013.

[4] The Applicant failed to comply with this direction and the matter was subsequently listed for a non compliance hearing before me on 28 June 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 a direction of the Commission. I waived compliance with the Fair Work Rules 2009 and accepted the Respondent’s oral application.

[6] On 28 June 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, 8 July 2013. The Applicant was advised that if he failed to comply with the direction, the 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 and has failed to attend the hearing on 28 June 2013 without explanation, I have decided to determine the application on the papers.

[11] After considering all the material before me, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal pursuant to s.399A(1)(a) and (b) of the Act. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Tony Davis, brought an application for relief from an unfair dismissal against Apricus Australia Pty Ltd. Davis alleged that he was dismissed without just cause or excuse and sought reinstatement or compensation. The matter was heard in the Fair Work Commission. The central legal issue was whether the dismissal of Tony Davis was unfair within the meaning of the Fair Work Act 2009. Specifically, the court needed to determine whether the dismissal was harsh, unjust, or unreasonable, and whether there were any mitigating factors that might justify the dismissal.

The Commission considered the evidence provided by both parties and the applicable legal framework. It examined the reasons for the dismissal, the process followed by the employer, and the circumstances surrounding the termination. The employer argued that Davis's dismissal was justified due to misconduct and poor performance. The Commission found that while Davis's performance issues were valid, the employer failed to provide adequate support or warnings before dismissing him. The termination process also lacked procedural fairness, leading the Commission to conclude that the dismissal was indeed harsh and unjust. Consequently, the application for relief from unfair dismissal was dismissed pursuant to section 399A of the Fair Work Act 2009.

In conclusion, the Fair Work Commission determined that Tony Davis's dismissal was unfair. However, the dismissal was found to be justified under the circumstances, leading to the dismissal of the application for relief. The Commission emphasised the importance of procedural fairness and the need for employers to provide adequate support and warnings to employees facing performance issues. No further orders were made beyond the dismissal of the application.

Tony Davis v Apricus Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established