Andrew Brett v HB Engineering (Tas) Pty. Ltd - [2022] FWC 1695

[2022] FWC 1695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Brett
v

HB Engineering (Tas) Pty. Ltd.

(U2022/1979)

DEPUTY PRESIDENT MASSON

MELBOURNE, 7 JULY 2022

Application for an unfair dismissal remedy – dismissal harsh, unjust and unreasonable, compensation ordered.

On 15 February 2022, Andrew Brett (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with HB Engineering (Tas) Pty. Ltd. (the Respondent) on 31 January 2022. The Applicant seeks an order for compensation.

Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 28 June 2022. I determined to conduct a conference pursuant to s.398 of the Act.

At the hearing, the Applicant was self-represented and gave evidence himself. The Respondent, which was represented by Stuart Boyd (Director), called the following witnesses to give evidence:

·     Dale Green – Tradesperson
·     Lyndall Healey – Business Manager
·     Justin Starick – Workshop Supervisor

Background and evidence

The Applicant commenced employment with the Respondent at its Rocherlea, Tasmania engineering workshop on 27 January 2021 as a casual labourer. It was uncontroversial that as a casual employee, the Applicant worked on a regular and systematic basis. He was then engaged by the Respondent on a full-time permanent basis from 2 September 2021. At the date of the Applicant’s dismissal, his role was that of the CNC plasma cutter and he was in receipt of an hourly rate of pay of $25.09[1], excluding superannuation. The Applicant confirmed that his ordinary hours of work prior to his dismissal were 7.00am to 3.30pm Monday to Thursday and 7.00am to 1.30pm on Friday with a 15 minute morning ‘smoko’ break taken at 10.00am each day.

The Respondent contends that the Applicant spent much of the morning of 28 January 2022 undertaking personal work on his motor vehicle without approval, that conduct constituting theft it says. That allegation is based on evidence of its witnesses which is set out below along with the evidence of the Applicant.

Mr Green, who was the senior employee in the workshop that morning, states that he approached the Applicant at approximately 9.30am and observed the Applicant at the ‘wire wheel’ polishing what was an exhaust manifold from the Applicant’s car. He says he asked the Applicant why the CNC plasma cutter was not operating in circumstances where the tradespersons were waiting on the Applicant to cut plates for them[2]. He says that he further told the Applicant that he did not care what personal jobs he was doing but he (the Applicant) needed to start the CNC plasma cutter and get the plates cut. According to Mr Green, the Applicant ignored the instruction and continued to work on his car parts.[3] Mr Green states that he was also aware that the Applicant had asked an apprentice (Mr Cody Room)…

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: [2022] FWC 1695
Decision Date: 7 JULY 2022

CaseChat Overview and Summary

Andrew Brett (the Applicant) brought an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with HB Engineering (Tas) Pty. Ltd. (the Respondent). The Applicant seeks an order for compensation. The Respondent did not dispute that it had dismissed the Applicant, however, it submitted that the dismissal was fair because it was based on a valid reason related to the Applicant’s conduct and that the Applicant was notified of that reason and given an opportunity to respond. The Commission found that the dismissal was unfair. The Applicant had engaged in misconduct by working on his motor vehicle during business hours on 28 January 2022. That conduct constituted a valid reason for his dismissal. However, the procedural failings of the Respondent in dismissing the Applicant outweighed the valid reason for dismissal. The Respondent did not notify the Applicant of the valid reason for his dismissal prior to the decision being made. Further, the Respondent did not give the Applicant an opportunity to respond to the valid reason for his dismissal. Reinstatement was found to be inappropriate. In the circumstances, the Commission ordered that the Respondent pay the Applicant compensation of $1,866.05.

Orders