DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Alan Carmody
v
ISS Integrated Services
(U2019/5205)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 2 SEPTEMBER 2019

Application for an unfair dismissal remedy – forklift driver – alleged breaches of duty – serious and wilful misconduct – whether personal factors mitigated breaches – procedural fairness – dismissal not harsh, unjust or unreasonable – application dismissed

[1] On 8 May 2019 Mr Alan Carmody (Mr Carmody or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by ISS Integrated Services Pty Ltd (ISS, the Respondent or the employer). He claims to have been unfairly dismissed on 18 April 2019.

[2] At the date of dismissal Mr Carmody was employed by ISS as a full time forklift driver under the ISS Integrated Services Pty Ltd Amcor Ltd Glass Operations Production Collective Workplace Agreement.

[3] Mr Carmody had six years and five months of service with ISS until he was dismissed on 18 April 2019.

[4] Mr Carmody claims that his dismissal was harsh, unjust or unreasonable. He seeks an order for compensation. He does not seek reinstatement.

[5] ISS oppose the application. It says that it terminated Mr Carmody’s employment on the ground of serious misconduct on 18 April 2019 and, without legal obligation, elected to pay him a month in lieu of notice rather than dismiss him summarily. ISS contend that the dismissal was not harsh, unjust or unreasonable, and that no issue of remedy arises.

[6] No jurisdictional issues arise in determining this matter. Mr Carmody was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.

[7] Conciliation of the application by a Commission-appointed conciliator was scheduled for 24 June 2019 but did not proceed due to the non-responsiveness of Mr Carmody. The application was referred to me for hearing and determination.

[8] On 16 July 2019 the employer made an application for the dismissal of Mr Carmody’s application on the ground of alleged non-responsiveness. However, in light of Mr Carmody’s appearance at a directions hearing that day, the strike-out application was not pressed. I issued pre-hearing directions on 16 and 31 July 2019.

[9] I heard the matter (merits and remedy) in open court in Adelaide on 27 and 28 August 2019.

[10] Both parties were self-represented at the hearing and neither sought external representation during the life of the matter. Mr Carmody presented his case in his own right. ISS’s General Counsel Mr Moore represented the…

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: [2019] FWC 6070
Decision Date: 2 SEPTEMBER 2019

CaseChat Overview and Summary

The applicant, Alan Carmody, applied for a remedy for unfair dismissal against ISS Integrated Services, his former employer. Carmody, a forklift driver, was dismissed from his employment following an incident where he was found to have breached workplace safety protocols and was subsequently accused of serious misconduct. Carmody claimed that his dismissal was unfair due to alleged personal circumstances that were not considered by his employer. The Fair Work Commission heard the application.

The central legal issues before the Commission were whether Carmody's actions constituted serious and wilful misconduct warranting dismissal, and if not, whether the dismissal was harsh, unjust, or unreasonable. Additionally, the Commission considered whether Carmody's personal circumstances were relevant and if they had been properly taken into account in the dismissal process. The fairness of the procedural steps leading up to the dismissal was also examined.

The Fair Work Commission found that Carmody's breaches of duty were serious and deliberate, justifying his dismissal. The Commission held that while Carmody's personal factors were relevant, they did not mitigate the seriousness of his misconduct. The employer had followed procedural fairness by providing Carmody with an opportunity to respond to the allegations. The Commission concluded that the dismissal was not harsh, unjust, or unreasonable, given the circumstances and the employer's actions.

The Fair Work Commission dismissed Carmody's application for an unfair dismissal remedy. The Commission determined that ISS Integrated Services had acted appropriately in dismissing Carmody and that the dismissal was justified under the circumstances.

Orders