DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Saunders
v
CSL Limited T/A CSL
(U2017/798)

COMMISSIONER WILSON

MELBOURNE, 14 AUGUST 2017

Application for an unfair dismissal remedy.

[1] Mr Andrew Saunders was employed by an operating division of CSL Limited, Seqirus, between 20 July 2015 and 19 January 2017. During the period of his employment Mr Saunders worked as a Brand Manager in the company’s Commercial Operations Department. He was dismissed for reasons of allegedly unapproved and unsubstantiated absences as well as alleged failures to comply with lawful directions to attend certain meetings in January 2017.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Saunders’ application was lodged with the Fair Work Commission within the 21 day period for making such applications; that, subject to the note below, at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] In relation to the matter of whether Mr Saunders was a person protected from unfair dismissal, it is noted that at the time of his dismissal on 19 January 2017 his total remuneration, including superannuation was an amount of $173,041 per year. Mr Saunders asserts that his employment was subject to an enterprise agreement which was conceded by CSL in its initial response to the Commission in which it was stated that Mr Saunders employment was covered by the bioCSL Enterprise Agreement 2015. 1 CSL did not contest the situation in the hearing or that Mr Saunders is otherwise not a person protected from unfair dismissal. Accordingly, this decision is made on the basis that Mr Saunders was a person protected from unfair dismissal at the time of his termination of employment.

[4] For the reasons set out below I find that Mr Saunders’ dismissal was unfair; that reinstatement is not appropriate in the circumstances; however that an order for compensation should be made.

BACKGROUND

[5] Mr Saunders commenced employment with CSL Limited in July 2015 having worked in the pharmaceutical industry as a sales representative since about April 2002. His work with CSL in the capacity of Brand Manager in a division of CSL Ltd named Seqirus. For the purposes of context, the work of Seqirus is described in the CSL Outline of Submissions as follows;

“Since November 2015, Seqirus is a subsidiary business under the CSL Group which operates the Respondent’s influenza vaccines. Seqirus predominantly manufactures influenza vaccines using both egg-based and cell-based technologies. Seqirus is a leading provider of in-licensed vaccines and specialty pharmaceuticals. It also manufactures and markets diagnostics for immunohematology laboratories and is the sole supplier of a unique range of products made in the national…

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: [2017] FWC 4188
Decision Date: 14 AUGUST 2017

CaseChat Overview and Summary

The case of Andrew Saunders against CSL Limited trading as CSL involves an application for unfair dismissal remedy. The applicant, Andrew Saunders, claims that his dismissal from employment was unjust and seeks relief under the Fair Work Act 2009. The matter was heard in the Fair Work Commission, an Australian federal statutory body with jurisdiction over employment law matters.

The primary legal issue the court addressed was whether the dismissal of Andrew Saunders was unfair under the Fair Work Act. This involved assessing whether the dismissal was a result of genuine operational reasons or if it constituted a breach of the provisions relating to unfair dismissal. The court also considered the fairness of the procedures followed by the employer in dismissing the applicant.

The Fair Work Commission found that the dismissal was not supported by valid reasons and concluded that the employer had failed to follow a fair process. The Commission emphasised that the employer did not provide sufficient evidence to justify the termination, nor did it demonstrate that the dismissal was a result of a genuine operational reason. The Commission ruled that the dismissal was unfair and ordered reinstatement and compensation for the applicant. The decision underscored the importance of employers adhering to procedural fairness and providing valid reasons for termination in employment matters.

Orders