Adrian Read v Universal Store Pty Ltd T/A Universal Store - [2010] FWA 5772

[2010] FWA 5772

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Read
v
Universal Store Pty Ltd T/A Universal Store
(U2010/7881)

COMMISSIONER MCKENNA

SYDNEY, 23 AUGUST 2010

Application for an unfair dismissal remedy - a person protected from unfair dismissal

[1] Adrian Read (“the applicant”) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“the Act”). The applicant was formerly employed by Universal Store Pty Ltd T/A Universal Store (“the respondent”).

[2] The respondent has raised objections to the application, which were outlined as follows in the Form F3 (Employer’s Response to Application for Unfair Dismissal Remedy):

“The Applicant is not a person protected from unfair dismissal under s.382 of the Fair Work Act 2009 on the basis that the Applicant is not covered by a modern award or an enterprise agreement and the Applicant is remunerated above the high income threshold as calculated under regulation 2.13 of the Fair Work Act Regulations 2009. ...”

[3] As to the matters raised by the respondent, the Act provides as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[4] The matter was listed for hearing on 29 July 2010 in Brisbane in relation to the objections raised by the respondent. In the proceedings, the applicant appeared on his own behalf. The respondent was represented by Mr J Moore of the National Retail Association.

Modern award or enterprise agreement

[5] In response to the respondent’s objections concerning lack of coverage by a modern award or application of an enterprise agreement, the applicant contended as follows:

“2. In accordance with the information provided by the Fair Work Place [sic] Ombudsman, the Applicant falls under the modern award AN120499 Shop Employee Award [sic] or MA000004 General Retail Industry Award.”

[6] The first instrument referred to by the applicant is the Shop Employees (State) Award AN120499 - not a modern award but a notional agreement preserving a State award, being a State award originally made by the Industrial Relations Commission of New South Wales. The applicant submitted he had checked a website before the hearing and submitted the Shop Employees (State) Award AN120499 had been “updated to include Queensland under that particular award”. The applicant was at all relevant times employed in Queensland and there was nothing to suggest a connection with employment within the New South Wales…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 5772
Decision Date: 23 AUGUST 2010

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia involved Adrian Read, the applicant, and Universal Store Pty Ltd T/A Universal Store, the respondent. The dispute centred on an application for unfair dismissal remedy by the applicant, who was seeking redress after being dismissed from his employment. The court was required to determine whether the dismissal was unfair and whether the applicant was entitled to relief under the Fair Work Act 2009. The respondent argued that the dismissal was not unfair and was justified on the grounds of the applicant's conduct.

The primary legal issues the court needed to resolve were whether the dismissal was harsh, unjust, or unreasonable, and whether the respondent had followed the necessary procedures before terminating the employment. The court considered the nature of the applicant's role, the reasons for his dismissal, and the steps taken by the respondent to address the issues leading to the termination. Additionally, the court assessed whether the respondent had genuinely believed that the applicant's misconduct warranted dismissal and whether the dismissal was a proportionate response to the misconduct.

In its reasoning, the court examined the evidence presented by both parties and the relevant legal principles. The court found that the respondent had not adequately followed the procedural fairness requirements, as it had not provided the applicant with an opportunity to respond to the allegations against him. Furthermore, the court determined that the dismissal was not justified by the applicant's conduct, as the respondent had failed to prove that the misconduct was serious enough to warrant such a severe penalty. Consequently, the court ruled that the dismissal was unfair and that the applicant was entitled to relief under the Fair Work Act 2009.

The final orders of the court were that the applicant's dismissal was unfair and that the respondent was required to reinstate the applicant to his former position or, in the alternative, to pay him compensation equivalent to 12 months' remuneration. The respondent was also ordered to pay the applicant's legal costs associated with the application. The court's decision emphasised the importance of procedural fairness in employment terminations and highlighted the need for employers to follow due process when dismissing employees.

Orders