[2016] FWC 6
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mark Box
v
Marshall Security Service Pty Ltd T/A Marshall Security Service
(U2014/13930)

VICE PRESIDENT WATSON

MELBOURNE, 4 JANUARY 2016

Application for relief from unfair dismissal – failure to comply with directions – application to dismiss application for unfair dismissal remedy - Fair Work Act 2009, ss.394, 399A, 587.

Introduction

[1] This decision concerns an application for unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act). The application was made by Mr Mark Box on 25 November 2014 in relation to the termination of his employment with Marshall Security Service Pty Ltd T/A Marshall Security Service (Marshall Security).

[2] On 4 September 2015 Marshall Security lodged an objection to the application and requested that the application be dismissed pursuant to ss.399A and 593 of the Act.

[3] Directions were issued for the filing of written submissions by both parties on the basis that the application to dismiss would be determined on the papers.

Background

[4] Mr Box was employed as a security guard with Marshall Security from 21 November 2011 until the termination of his employment on 14 November 2014. Marshall Security states that Mr Box was dismissed for serious misconduct, involving the alleged theft of vehicle roof light equipment from a premises at which Mr Box was employed to patrol.

[5] The matter was listed for conciliation on 18 December 2014. Marshall Security on two occasions requested that the conciliation be adjourned until the conclusion of a criminal matter concerning allegations of theft against Mr Box related to the events which formed the grounds for the termination of Mr Box’s employment. In addition, its representative was unavailable until 12 January 2015. The adjournment requests were not granted. Marshall Security advised that it did not wish to participate in the conciliation without representation and until the criminal matter had been finalised.

[6] The matter was listed for hearing on 24 and 25 March 2015 in Mildura. Directions were issued for Mr Box to file an outline of submissions and any witness statements and other documentary material by 9 February 2015 and for Marshall Security to file in response by 2 March 2015.

[7] On 9 February 2015 Mr Box requested that he be granted an extension to 20 February 2015 to file his written material as he had recently commenced a new job and had not had time to address the matter. On 10 February 2015 the Commission issued Amended Directions requiring Mr Box to file by 20 February 2015 and Marshall Security to file in reply by 13 March 2015.

[8] On 19 February 2015 Mr Box requested that he be granted a further extension to 1 March 2015 as he had been dealing with the related criminal matter. On 20 February 2015 the Commission issued further Amended Directions, requiring Mr Box to file by 26 February 2015 and Marshall Security to file in response by 19 March 2015.

[9] On 9 March 2015 Mr Box filed a witness statement and evidence in support of his application.

[10] On 11 March 2015 the matter was allocated to me for determination. The matter was listed for Mention on 17 March 2015. At the Mention Mr Box appeared on his own behalf and Ms S Stonier, solicitor, appeared on behalf of Marshall Security. It was agreed that the matter would be adjourned pending the outcome of the criminal matter which was listed for hearing on 25 March 2015 at the Mildura Magistrates’ Court. Mr Box was to advise the Commission after 25 March 2015 as to the status of the related criminal matter, so as to facilitate an appropriate date for listing his application for unfair dismissal remedy. It was also agreed that the parties would file additional written material after the conclusion of the criminal matter.

[11] Marshall Security filed an outline of submissions, a witness statement and evidence on 19 March 2015.

[12] On 30 March 2015 Mr Box telephoned the Commission and advised that the criminal matter had been adjourned to 22 April 2015. Mr Box was requested to confirm in writing when his application for unfair dismissal remedy should be heard. The Commission sent an email to Mr Box on 29 April 2015 and 13 May 2015 to request that he advise when he anticipates that his application for unfair dismissal remedy can be heard, taking into consideration the status of the related criminal matter.

[13] On 21 May 2015 both parties advised the Commission that the next hearing date in relation to the criminal proceedings was 26 May 2015. The parties were asked to provide an update following 26 May 2015.

[14] On 29 May 2015 Marshall Security advised that the criminal proceedings had been adjourned to 27 August 2015.

[15] On 28 August 2015 Marshall Security advised that Mr Box was convicted of criminal charges in the Mildura Magistrates’ Court relating to theft. As the theft charges are the grounds for dismissal, Marshall Security submits that the application for unfair dismissal remedy should be dismissed pursuant to s.399A of the Act. On 3 September 2015 the Commission advised Marshall Security that if they wished the application to be dismissed they should make a formal application. Marshall Security made that application on 4 September 2015 and requested that the matter be dismissed pursuant to ss.399A and 593 of the Act.

[16] On 5 October 2015 the Commission sent correspondence to Mr Box asking whether he wished to proceed with his application for unfair dismissal remedy. He was asked to respond by 16 October 2015. No response was received. My associate telephoned Mr Box on 19 October 2015 and asked whether he had received the correspondence and whether he wished to pursue his application. Mr Box advised that he had not responded as he had been busy, but that he was still considering whether he wished to proceed with his unfair dismissal application. He advised that he hoped to advise the Commission of his intention within the next two weeks.

[17] On 19 October 2015 the Commission issued Directions for Marshall Security to file an outline of submissions and any evidence on which it intends to rely in relation to its application to dismiss Mr Box’s application for unfair dismissal remedy by 26 October 2015. Mr Box was directed to file an outline of submissions and any evidence on which he intends to rely in reply by 4 November 2015. The matter was listed for hearing in Melbourne with a video link to Mildura on 6 November 2015.

[18] On 26 October 2015 Marshall Security filed submissions in relation to the application to dismiss Mr Box’s application for unfair dismissal remedy.

[19] On 5 November 2015 Mr Box sent an email in which he requested the matter be adjourned as he is required to be in attendance elsewhere each Friday so as to comply with a community corrections order. He also requested an extension to file his outline of submissions and additional evidence.

[20] On 5 November 2015 I advised that the hearing which was scheduled on 6 November 2015 would be cancelled and the matter would be determined on the basis of written submissions. Mr Box was directed to file a response to the submissions of Marshall Security by 12 November 2015. Marshall Security were directed to file any further response by 17 November 2015.

[21] On 16 November 2015 Marshall Security filed further submissions in relation to its application to dismiss Mr Box’s application for unfair dismissal remedy.

[22] On 17 November 2015 Mr Box wrote an email in which he stated that he is not able to email or write, requires help with this matter and is confused about what he is meant to be doing in relation to the matter. The Commission responded on 23 November 2015 in the following terms:

[23] No correspondence has been received from Mr Box since 17 November 2015.

Legislative provisions

[24] Section 399A of the Act provides as follows:

[25] Marshall Security also relies on s.593 of the Act in its application to dismiss Mr Box’s application. Section 593 concerns hearings and confidential evidence in hearings and is not relevant to determining an application to dismiss an application for unfair dismissal remedy.

[26] The Commission is itself empowered to dismiss an application pursuant to s.587 of the Act, which provides as follows:

Should the application be dismissed?

[27] Marshall Security submits that Mr Box’s application for unfair dismissal remedy should be dismissed pursuant to s.399A(1)(b) as Mr Box has on a number of occasions failed to comply with a direction of the Commission to file written material.

[28] Further, Marshall Security notes that Mr Box has been convicted of theft charges in the Mildura Magistrates’ Court after pleading guilty and understands that his security licence has been cancelled. Marshall Security states that the allegations of theft were the grounds for dismissal. As Mr Box has now pleaded guilty, Marshall Security submits that, as a small business, the termination was not harsh, unjust or unreasonable and was consistent with the Small Business Fair Dismissal Code and Mr Box’s application for unfair dismissal remedy has no reasonable prospects of success.

Conclusion

[29] I have considered all of the material filed in this matter. There are clear facts surrounding the termination of employment and the reason for the termination.

[30] Mr Box was dismissed in November 2014 on the grounds of serious misconduct. The circumstances that led to the termination involved alleged theft and lack of trust. The circumstances were referred to the police. Mr Box pleaded guilty to the charges.

[31] I am satisfied that Marshall Security is a small business. The Small Business Fair Dismissal Code provides that a summary dismissal is fair if the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Further, the Code provides that reporting alleged theft to the police is sufficient for the dismissal to be deemed fair. The employer did so.

[32] I am satisfied in the above circumstances that Mr Box’s application has no reasonable prospects of success and that it should be dismissed. It is not necessary to consider the other grounds advanced by the employer.

[33] For the above reasons the application is dismissed.

Seal of the Fair Work Commission with member’s signature.

VICE PRESIDENT

Final written submissions:

Marshall Security on 26 October 2015 and 16 November 2015.

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