Fair Work Act 2009

s.394 - Unfair dismissal

[1] Mr Dominic Igini has made an unfair dismissal application alleging his employment was terminated by MSS Security Pty Ltd T/A MSS Security (MSS) as a result of constructive dismissal on 27 December 2017.

[2] MSS denies it has dismissed Mr Igini and has raised this as a jurisdictional objection to the unfair dismissal application.

[3] The matter was the subject of a conciliation conference on 13 February 2018, but did not resolve.

[4] On 16 February 2018, the Fair Work Commission issued Requirements and listed the unfair dismissal application for a Jurisdiction (No Dismissal) and Arbitration Conference/Hearing on 23 and 24 April 2018. The Requirements provided as follows:

1. The respondent (MSS Security Pty Ltd T/A MSS Security) is required to file with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the applicant:

• the Respondent's Outline of Argument: objections;
• the Respondent's Statement(s) of Evidence; and
• the Respondent's Document List

by no later than noon on Monday, 5 March 2018.

2. The applicant (Mr Dominic Igini) is required to file with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the respondent:

• the Applicant's Outline of Argument;
• the Applicant's Outline of Argument: objections;
• the Applicant's Statement(s) of Evidence; and
• the Applicant's Document List

by no later than noon on Tuesday, 13 March 2018.

3. The respondent (MSS Security Pty Ltd T/A MSS Security) is required to file with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the applicant:

• the Respondent's Outline of Argument; and
• Any other material it wishes to file in reply.

by no later than noon on Tuesday, 20 March 2018.

[5] The Requirements provided that MSS was to first file its material in relation to its jurisdictional objection that Mr Igini had not been dismissed and then its material in response to Mr Igini's allegation that he has been unfairly dismissed on or before 20 March 2018.

[6] Mr Igini first made an F52 application to the Commission for the production of documents on 23 January 2018. It stated the documents sought were:

"Any directions given to MSS Security for my removal from full time employment at Monash University Clayton - my contracted employment site.

Any expressed reasons- written or verbal, that Monash University Security Department has given MSS for the removal of myself (employee) from Monash University Clayton campus.

The direction that MSS Security allege are from Security Management, namely Chris Henderson - Deputy Security Manager at the Clayton Campus."

[7] The documents were said to go to Mr Igini's allegation that his being stood down was unfair dismissal and that his standing down was due to unsubstantiated allegations of MSS of directions received from the Monash University Security department.

[8] The Order Mr Igini sought required Mr Chris Henderson, Deputy Security Manager at Monash University, to produce "[w]ritten or verbal communications including emails that pertain to the reasons for my work site dismissal."

[9] The Application was escalated to me in my capacity as Termination of Employment Panel Head. I declined to make the order sought at that time. I considered it premature and asked that Mr Igini be advised it was open to make further application after MSS had complied with the Requirements. Mr Igini was advised of this in a letter from the Commission dated 2 March 2018.

[10] MSS filed and served its material relating to its jurisdictional objection that Mr Igini had not been dismissed on 5 March 2018.

[11] Mr Igini immediately re-made his F52 application to the Commission for the production of documents. It was escalated to me for consideration. I again declined to grant the application. Mr Igini was advised of this in a letter from the Commission dated 6 March 2018.

[12] A member of the Commission's staff conveyed my reasons for doing so in a telephone call to Mr Igini, as reflected in a file note:

• I noted MSS asserts Mr Igini was not dismissed.

• If MSS fails to persuade the Commission this is the case and the Commission is satisfied he was dismissed, MSS will be required to satisfy the Commission that there was a valid reason for the termination of his employment.

• I had noted the various terms and conditions of employment in the employment documents MSS had supplied to date.

• The Enterprise Agreement applicable to the employment states MSS may transfer an employee from any site to another site or to the awaiting Assignment Pool in response to a client's request or the operational requirements of the business.

• Given this, I was not persuaded the type of documents Mr Igini sought were relevant and necessary to inform the Member who will ultimately hear the matter.

[13] At this time Mr Igini had not filed his material and MSS was not required to file its further material until noon on 20 March 2018.

[14] Mr Igini filed and served his material on 13 March 2018. He also made an F51 application for orders requiring three individuals to attend the Jurisdiction and Arbitration Conference/Hearing.

[15] On 15 March 2018, I determined that the request for the orders requiring the three individuals to attend would be more appropriately dealt with by the Member of the Commission who would be ultimately allocated the file for the Jurisdiction and Arbitration Conference/Hearing. This was conveyed to Mr Igini by letter dated 15 March 2018. This letter also advised the allocation was due to occur on 5 April 2018. It was subsequently explained to Mr Igini that if the F51 application was granted by the Member of the Commission who was allocated the file, the individuals concerned would have to be at the Jurisdiction and Arbitration Conference/Hearing and it would not have to be adjourned in the meantime.

[16] On 19 March 2018, MSS filed and served its material in response to Mr Igini's material alleging he was unfairly dismissed.

[17] In response to a query raised by Mr Igini on 19 March 2018, I determined that it might assist if I was to conduct an attendance Mention so that Mr Igini could discuss his concerns regarding his applications to the Commission for the production of documents. At that time, I had the totality of the materials that had been filed by MSS in accordance with the Requirements.

[18] On 21 March 2018, Mr Igini was left a voicemail message relating to my intention to list the matter for an attendance Mention on 23 March 2018. Some email correspondence subsequently passed between Mr Igini and the Commission, during which the purpose and nature of the Mention was outlined. It was advised that both parties were directed to attend and I intended to discuss the orders Mr Igini was seeking.

[19] Mr Igini was unhappy with this. It was his view that MSS should not be involved with his applications for production and suggested a telephone conversation with me would suffice. He indicated his desire to make a complaint in relation to the handling of his application.

[20] In response, Mr Igini was provided with information as to how to make a complaint and was also advised by a member of the Commission's staff that I had determined that the attendance Mention would still proceed. Mr Igini was given the option to attend the mention by telephone.

[21] To this advice, Mr Igini replied "[t]hats [sic] your decision not mine. I did not ask for it." I then authorised a member of the Commission's staff to send an email Mr Igini on 22 March 2018 which stated:

"Deputy President Clancy - Termination of Employment Panel Head is conducting tomorrow's Mention to discuss the Orders you have requested and any other issues you have with the case management.

I note you have advised that you are working and 2pm Friday may not work for you to attend the Commission and/or the Mention.

Please advise if conducting the Mention via telephone will assist. If you are unable to make the date please indicate when you are not working so we may reschedule."

[22] Mr Igini's response to this email was:

"It is not appropriate if the FWC has involved the respondent in this mention. If the FWC can assure me that it does not involve the respondent and that they are not privy to the conversation then I would be happy to talk at 2pm over the phone.

Otherwise I will proceed with a formal complaint in this instance."

[23] On the morning of 23 March 2018, I authorised a member of the Commission's staff to send an email to Mr Igini which stated that the Mention at 2pm would proceed by telephone, he would have the opportunity to participate and address the documents he is seeking to have produced, MSS would also have the opportunity to make submissions and he would then be given a further opportunity to make submissions to the Deputy President in response. The letter also requested Mr Igini to confirm his telephone number if he intended to participate in the Mention.

[24] Mr Igini responded by stating he would be proceeding with a formal complaint.

[25] I conducted the Mention by telephone at 2pm on 23 March 2018. Mr Igini did not make himself available. MSS was represented by Ms Lisa Fanti, Human Resources Manager.

[26] I advised Ms Fanti that I had reviewed the material MSS had filed and served. I referred to the MSS submission that the Monash University Security Department had requested MSS to remove Mr Igini from the site and the witness statement of Mr Dylan Long. There was no written request from the Monash University Security Department attached to either document. Ms Fanti advised that Monash University Security Department had not requested Mr Igini's removal in writing but rather, the request had been orally made by Mr Leo Hussey, its Security coordinator.

[27] The documents Mr Igini has sought have thus far been:

"Any directions given to MSS Security for my removal from full time employment at Monash University Clayton - my contracted employment site.

Any expressed reasons- written or verbal, that Monash University Security Department has given MSS for the removal of myself (employee) from Monash University Clayton campus.

The direction that MSS Security allege are from Security Management, namely Chris Henderson - Deputy Security Manager at the Clayton Campus."

[28] The form of Order he has sought has been "[w]ritten or verbal communications including emails that pertain to the reasons for my work site dismissal."

[29] Section 590 of the Fair Work Act 2009 relates to the power of the Commission to inform itself.

[30] The section provides:

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593)."

[31] It can be seen the power to require a person to provide copies of documents or records, or to provide any other information to the Commission is discretionary.

[32] Further, the Commission's Orders to attend and orders to produce practice note provides:

"A person is only required to produce documents which are in their possession, custody or control. A person is not required to create documents to comply with an order to produce."

[33] I am not persuaded the Order for production sought by Mr Igini should be made and I decline to make it. If MSS does not have in its possession and did not receive any written directions from the Monash University Security Department directing Mr Igini's removal, then it is unlikely that the Monash University Security Department will have any either. I am therefore not persuaded the order sought will inform the Commission.

[34] I appreciate Mr Igini may be unfamiliar with the processes of the Commission. I also appreciate that he was frustrated at the view I had taken in relation to his request for the production of documents up until 19 March 2018, the date upon which MSS filed and served its last materials pursuant to the Requirements. Having had the opportunity to review all the documents filed by MSS, I determined that a Mention might provide the most useful and efficient forum to discuss whether there was merit in granting the order sought by Mr Igini, as well as an opportunity for Mr Igini to air his grievances.

[35] Mr Igini may now decide he will make application for an order requiring Mr Hussey to attend the Jurisdiction and Arbitration Conference/Hearing on 23 April 2018. There remains the opportunity for him to do so and, as previously advised, such an application can be made to the Member of the Commission who is allocated the file for the Jurisdiction and Arbitration Conference/Hearing. This allocation remains scheduled for on or about 5 April 2018.

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