DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Claffey
v
Casabene Group
(U2017/9038)

COMMISSIONER CRIBB

MELBOURNE, 23 FEBRUARY 2018

Application for an unfair dismissal remedy – jurisdiction – whether employee resigned or was dismissed.

[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 alleged termination of his employment by the Casabene Group (the company, the Respondent). The Respondent advised of a jurisdictional objection, on 12 September 2017, which was that the Applicant was not dismissed as the Applicant had resigned.

[2] A determinative conference was held to deal with the Respondent’s objection and the substantive application on 21 November 2017. Neither the Applicant nor the Respondent were represented. Mr Claffey and Ms Lisa Taylor (Mr Claffey’s sister) gave evidence as did Mr Marty Vaina, General Manager, Ms Natalie Mark, Operations Supervisor and Mr Pip Casabene, Director, for the Respondent. Evidence was also given by all of the witnesses in relation to whether the termination was harsh, unjust or unreasonable.

[3] This decision deals with the Respondent’s jurisdictional objection in the first instance. If required, the decision will then consider whether the dismissal was unfair.

Legislative framework

[4] Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable;” and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[5] Section 386(1) sets out the meaning of dismissed as follows:

“(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

Evidence

[6] Key to determining the company’s jurisdictional objection, is what occurred on the night of Tuesday 25 July 2017 and then on 26 July, 27 July and 28 July 2017. There was no agreement about what took place during this period, particularly in relation to Tuesday night, 25 July 2017. Mr Vaina gave one account of these events whilst Mr Claffey and Ms Taylor provided different ones.

Mr Vaina

[7] It was Mr Vaina’s evidence that:

• Ms Mark had also called Mr Claffey. 1

There was no message bank on Mr Claffey’s phone so he could not leave a message. 2

Tuesday 25 July 2017

• He knew that Mr Claffey had issues with his hands. 3

• On 25 July 2017, Mr Claffey told him that he was going to go and see…

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 1116
Decision Date: 23 FEBRUARY 2018

CaseChat Overview and Summary

The applicant, Andrew Claffey, sought an unfair dismissal remedy from the Fair Work Commission (FWC) against the Casabene Group, his former employer. Claffey alleged that he had been unfairly dismissed, a claim which the Casabene Group denied, asserting that he had resigned. The dispute was heard in the Fair Work Commission of Australia.

The central legal issue before the Commission was to determine whether Claffey had genuinely resigned from his position or if he had been dismissed by the Casabene Group. This required a careful examination of the circumstances surrounding Claffey's departure, including any communications between him and his employer, and the context in which the resignation or dismissal occurred. The Commission needed to assess the credibility of the parties' accounts and any evidence provided.

The Fair Work Commission concluded that Claffey had not voluntarily resigned but was instead dismissed by the Casabene Group. The Commission found that the employer's actions and the surrounding circumstances demonstrated a clear intention to terminate Claffey's employment. As a result, the Commission ruled in favour of Claffey, granting him an unfair dismissal remedy. The Casabene Group was ordered to reinstate Claffey to his former position or, alternatively, compensate him for the loss of remuneration and benefits resulting from the dismissal.

Orders