Alexander Dominic Birkinshaw v Marlau Nominees Pty Ltd - [2022] FWC 2019

[2022] FWC 2019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Alexander Dominic Birkinshaw
v

Marlau Nominees Pty Ltd

(U2021/11322)

COMMISSIONER CAMBRIDGE

SYDNEY, 3 AUGUST 2022

Unfair dismissal - out of work hours incident - valid reason for dismissal - procedural deficiencies - valid reason balanced against procedural error - dismissal not harsh, unjust or unreasonable - application dismissed.

This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 7 December 2021. The application was made by Alexander Dominic Birkinshaw (the applicant) and the respondent employer is Marlau Nominees Pty Ltd trading as Paramount Liquor (the employer).

The application indicated that the date that the applicant’s dismissal took effect was 23 November 2021. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act.

The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 9 June 2022.

At the Hearing, the applicant represented himself, and he provided evidence as the only witness called in support of the unfair dismissal claim. The employer was represented by Mr Matthew Jeffrey, the employer’s General Manager – New South Wales. Mr Jeffrey called two witnesses who provided evidence on behalf of the employer, and he also provided evidence as the third witness for the employer. The applicant and Mr Jeffrey also made oral submissions during the Hearing which involved elaborations upon documentary material that had been filed by the respective Parties.

Background

The applicant first worked for the employer in March 2020 as a casual delivery driver. The applicant’s employment apparently ceased for a period of a little over 3 months, and in June 2020, he was re-engaged on a casual basis until November 2020, when his employment as a “casual” Warehouse Assistant was confirmed in a written contract. The work performed by the applicant included the delivery of wholesale liquor products to customers that primarily operated licenced premises such as hotels, bars, clubs, cafes, and restaurants.

The employer operates what it asserts to be Australia’s largest family-owned on-premise liquor wholesaler business. The employer conducts its business operations from warehouses located in Victoria, New South Wales, and South Australia. The applicant worked at and from the employer’s primary office and distribution facility in New South Wales located in the Sydney suburb of Yennora. The employer has approximately 70 employees engaged in respect of its New South Wales operations, and about 250 employees nationwide.

In January 2021, the applicant suffered a workplace injury to his back, and immediately before the termination of his employment, the hours of work and the duties that the applicant performed were the subject of a graduated return to work plan. The employment of the applicant was without recorded complaint prior to events which commenced on 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.

Continue reading Alexander Dominic Birkinshaw v Marlau Nominees Pty Ltd

Details

AGLC: Alexander Dominic Birkinshaw v Marlau Nominees Pty Ltd [2022] FWC 2019
Case: [2022] FWC 2019
Decision Date: 3 AUGUST 2022

CaseChat Overview and Summary

In the matter of Alexander Dominic Birkinshaw v Marlau Nominees Pty Ltd, the Fair Work Commission assessed an application for unfair dismissal lodged by the applicant, Alexander Dominic Birkinshaw, against the respondent employer, Marlau Nominees Pty Ltd. The application was made pursuant to section 394 of the Fair Work Act 2009. The applicant had been dismissed from his position as a casual Warehouse Assistant, and he claimed that his dismissal was unfair. The legal issues the court needed to decide involved whether the applicant's dismissal was harsh, unjust or unreasonable, and whether there was a valid reason related to his capacity or conduct for the dismissal.

The court found that the employer had provided a valid reason for the dismissal, as the applicant's conduct during an incident at Websters Bar represented misconduct. The court held that the employer was entitled to take action against the applicant's "out of hours" conduct because it damaged or was likely to damage the employer's reputation and commercial interests. Despite some procedural deficiencies in the employer's process, the court concluded that the dismissal was not harsh, unjust, or unreasonable when balanced against the valid reason for dismissal. Therefore, the application for unfair dismissal was dismissed.

Orders