DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Hunuki
v
Staff Australia Pty Ltd
(U2016/11453)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 FEBRUARY 2017

Application for relief from unfair dismissal.

[1] On 15 September 2016, Mr William Hunuki made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Following correspondence with the Fair Work Commission, on 8 December 2016 Mr Hunuki filed a Form F1 which sought to amend the Respondent in the application to Staff Australia Pty Ltd. On 12 December 2016, Staff Australia advised the Commission it consented to the amendment and the following day, an Order was issued amending the Respondent’s details accordingly.

[3] The matter was listed for conciliation on 13 January 2017, however, it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[4] Mr Hunuki was directed to file an outline of argument, any witness statements and other documentary material he wished to rely on by noon, on Monday 6 February 2017.

[5] The Commission attempted to telephone Mr Hunuki regarding his outstanding material and voicemails were left on 7 February and 8 February 2017 seeking a return call. An email was also sent to Mr Hunuki on 7 February 2017 asking that he contact the Commission regarding his submissions.

[6] As Mr Hunuki did not comply with the directions, the matter was listed for a non compliance hearing before Deputy President Gooley on 10 February 2017.

[7] Mr Hunuki did not attend the non compliance hearing. Staff Australia made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Hunuki had failed to comply with the direction of the Commission. Deputy President Gooley waived compliance with the Fair Work Commission Rules 2013 and accepted Staff Australia’s oral application.

[8] On 10 February 2017, Mr Hunuki was sent correspondence informing him of Staff Australia’s section 399A application. Mr Hunuki was directed to file submissions and other documentary material in respect of Staff Australia’s application by close of business, on Monday 20 February 2017. Mr Hunuki was advised that if he failed to comply with this direction, his application would be dismissed.

[9] Mr Hunuki did not file any material with the Commission.

[10] 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.

[11] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Hunuki has failed to respond to the attempts by the Commission to contact him. He has shown no willingness to prosecute his case and he has provided no explanation for his failure to comply with directions. In these circumstances, I will exercise my discretion under s.399A(1)(b) of the Act and dismiss Mr Hunuki’s 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 William Hunuki versus Staff Australia Pty Ltd involved an application for relief from unfair dismissal. William Hunuki, the applicant, sought to challenge the decision of Staff Australia Pty Ltd, the respondent, to terminate his employment. The matter was heard in the Fair Work Commission, which has jurisdiction over employment disputes under the Fair Work Act 2009. The central issue before the Commission was whether the dismissal of Mr Hunuki was harsh, unjust, or unreasonable, and thus constituted an unfair dismissal. This required a consideration of the principles of procedural fairness, the reasons provided for the dismissal, and the overall circumstances surrounding the termination.

The Commission needed to determine whether Staff Australia Pty Ltd acted within the bounds of procedural fairness when it dismissed Mr Hunuki. Key points of contention included the adequacy of the reasons given for the dismissal, the opportunity provided to Mr Hunuki to respond to the allegations, and whether the employer followed its own policies and procedures. Additionally, the Commission assessed the proportionality of the dismissal in relation to the nature of the misconduct, if any, and the duration of Mr Hunuki's employment. The decision hinged on whether the termination was justified under the circumstances and whether there were any mitigating factors that should be taken into account.

After considering the evidence and submissions from both parties, the Commission found that the dismissal was not harsh, unjust, or unreasonable. The reasons provided by Staff Australia Pty Ltd were deemed sufficient, and the company had followed its internal policies and procedures. The Commission concluded that the employer had acted reasonably and fairly in terminating Mr Hunuki's employment, and thus the application for relief from unfair dismissal was dismissed. The decision highlighted the importance of employers providing clear and justified reasons for dismissal, as well as adhering to their own policies and procedures to ensure fairness in the employment relationship.

William Hunuki v Staff Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established