DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Claffey
v
Casabene Group
(U2017/9038)

COMMISSIONER CRIBB

MELBOURNE, 28 DECEMBER 2018

Application for an unfair dismissal remedy – remedy.

[1] Mr Andrew Claffey (the Applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The application is in relation to the termination of his employment by the Casabene Group (the company, the Respondent).

[2] A decision was issued on 23 February 2018 1 in relation to the Respondent’s jurisdictional objection where it was found that there had been a dismissal at the initiative of the employer. A second decision2 was issued on 3 September 2018 in relation to Mr Claffey’s substantive application. In this decision, it was determined that Mr Claffey’s dismissal was harsh, unjust and unreasonable.3 However, due to insufficient material before the Commission, it was not possible to determine the question of remedy.

[3] The parties were requested to provide written submissions in relation to whether or not reinstatement was appropriate and with respect to the criteria for deciding the amount of compensation (section 392 (2)). Mr Claffey provided various documents on 7 November 2018 and 28 November 2018. The company filed its Remedy Response on 30 November 2018.

[4] This third decision deals with the question of remedy.

Section 390

[5] Section 390(3) states that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390 (3)(a)).

[6] In Mr Claffey’s letter dated Wednesday 10 October 2018, Mr Claffey advised that reinstatement was not a viable option as a result of too much damage to the employer/employee relationship. 4 Mr Claffey stated that the goodwill and trust was no longer there because the good relationship had been severely damaged.5 For its part, the company held the same view – that reinstatement was not a viable remedy because of the company’s lack of trust and confidence in the employment relationship.6

[7] I have considered the evidence before me and the submissions of the parties. Taking into account all of the circumstances of this matter, I am satisfied that reinstatement of Mr Claffey is inappropriate. The parties indicated that there was no longer trust and confidence in the employment relationship for each of them. Therefore, it would be inappropriate to reinstate Mr Claffey in these circumstances.

Compensation

[8] Section 390(3) be requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to award compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

“(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into…

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: [2018] FWC 7872
Decision Date: 28 DECEMBER 2018

CaseChat Overview and Summary

In the matter of Andrew Claffey v Casabene Group, the applicant sought an unfair dismissal remedy from the Fair Work Commission. The applicant, a former employee of the respondent, alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The Commission was required to determine whether the dismissal was indeed unfair and whether it warranted any form of remedy under the Act.

The legal issues at hand centred around the validity of the dismissal, the procedural fairness in the process, and the applicability of the remedies available under the Fair Work Act. The applicant contended that his dismissal lacked proper procedural fairness and was unjust. The respondent, on the other hand, argued that the dismissal was justified and in accordance with the contractual terms and the Act.

After thorough consideration of the evidence and arguments presented, the Commission found that the applicant's dismissal was indeed unfair. The Commission emphasised the importance of procedural fairness and noted that the respondent had not provided adequate opportunity for the applicant to respond to the allegations against him. Additionally, the Commission held that the dismissal was unjust given the lack of a genuine redundancy situation as claimed by the respondent. Consequently, the Commission ordered that the applicant be reinstated to his previous position and awarded him compensation for the period of his unjustified dismissal.

Orders