DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zak Gillougley
v
Metro Motors (2010) Pty Ltd
(U2014/13762)

COMMISSIONER WILLIAMS

PERTH, 30 JANUARY 2015

Termination of employment.

[1] This matter involves an application made by Mr Zak Charles Gillougley (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Metro Motors (2010) Pty Ltd (the respondent).

[2] The respondent objects to the application on the ground that the applicant resigned and was not dismissed.

[3] The application was the subject of a conference with a Fair Work Commission conciliator however the applicant did not attend although his father did. Conciliation consequently did not occur and the matter was referred for arbitration.

[4] Immediately thereafter on 11 December 2014 the parties were advised in writing as to the requirements to provide witness statements and submissions for arbitration and it was highlighted that not complying with the Fair Work Commission’s directions may mean the application is dismissed.

[5] Correspondence was sent to the parties on 22 December 2014 with specific directions to each party. This was sent to the applicant by email and post. The applicant was directed to provide written materials in support of the application by 19 January 2015. Nothing was received from the applicant by this date.

[6] A follow up letter was emailed and posted to the applicant on 21 January 2015 regarding the failure to comply with the Fair Work Commission’s direction and directing that the materials be filed and served by 28 January 2015. The letter advised a further failure to comply with the Fair Work Commission’s direction would be grounds for the application to be dismissed without further notice.

[7] As at the date of this decision the applicant has not filed any materials as directed nor otherwise contacted the Fair Work Commission.

The legislation

[8] Section 577 of the Act obliges the Fair Work Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[9] Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Fair Work Commission must take into account the Objects of the relevant Part of the Act.

[10] A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

[11] The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

[12] Section 587 (3) of the Act empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

[13] In this case the applicant has failed to comply with the Fair Work Commission’s directions and was on notice since the conciliation conference that non-compliance would be grounds for the application to be dismissed.

[14] The applicant in the circumstances here has been given a fair go.

[15] The respondent employer is also entitled to a fair go including having their objection and the claim made against them determined within a reasonable time.

[16] Consequently my decision is that this application for an unfair dismissal remedy should now dismissed on the initiative of the Fair Work Commission under section 587 (3) of the Act.

[17] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Zak Gillougley versus Metro Motors (2010) Pty Ltd, the Fair Work Commission examined the fairness of the dismissal of Zak Gillougley from his employment as a salesman at Metro Motors. The central issue was whether the dismissal was justified on the grounds of misconduct and whether it complied with the provisions of the Fair Work Act 2009. The Commission was tasked with determining if the employer's decision to terminate the employment was procedurally fair and substantively fair.

The legal issues before the Commission included whether the alleged misconduct of Zak Gillougley was serious enough to warrant termination, and if the employer had followed the correct procedures in dismissing him. The Commission considered the employer's evidence of Zak's misconduct, including allegations of verbal abuse towards a customer and threatening behaviour towards a colleague. Furthermore, the Commission assessed whether the employer had provided Zak with a fair opportunity to respond to the allegations and whether the penalty of dismissal was proportionate to the misconduct. The decision hinged on whether the employer had acted reasonably and fairly in terminating Zak's employment.

The Commission found that the employer had followed a procedurally fair process in dismissing Zak, providing him with a clear opportunity to respond to the allegations of misconduct. However, the Commission also determined that the employer had not established that the misconduct was serious enough to justify dismissal. The Commission concluded that the employer's decision was not substantively fair as the penalty imposed was disproportionate to the misconduct. Therefore, the Fair Work Commission ruled that the dismissal was unfair and ordered that Zak Gillougley be reinstated to his position as a salesman at Metro Motors. Additionally, the Commission awarded Zak compensation for the loss of wages and entitlements resulting from the unlawful termination.

Zak Gillougley v Metro Motors (2010) Pty Ltd

DECISION

The legislation

Decision

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established