DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andy Cowper
v
St Joseph’s Flexible Learning Centre
(U2018/6737)

COMMISSIONER GREGORY

MELBOURNE, 25 OCTOBER 2019

Application for an unfair dismissal remedy.

Introduction

[1] The Commission dealt with and determined Mr Andy Cowper’s unfair dismissal application in a decision handed down on 23 September 2019. It found he had been unfairly dismissed by St Joseph’s Flexible Learning Centre (“the Centre”) on the basis that his dismissal was at least harsh and unreasonable. The Commission then turned to consider what is an appropriate remedy in the context of the provisions contained in ss.390 and 392 of the Fair Work Act 2009 (Cth) (“the Act”). It concluded at [177] that it was not prepared to make an order for reinstatement based on what it considered to be a breakdown in the necessary relationship of trust and confidence between Mr Cowper and his former employer.

[2] In turning to deal with the issue of compensation the Commission noted that there was only a limited amount of material before it at the time dealing with the issue of compensation by way of remedy. It also noted that the parties had indicated that they were of the view that it was appropriate for further submissions and evidence to be provided about any consideration of an appropriate amount of compensation.

[3] The Commission accordingly established a timeframe for further submissions to be provided by the parties, and indicated that it would then determine the matter. This decision accordingly deals with the issue of what amount of compensation is appropriate in all the circumstances by way of remedy.

[4] The Applicant provided written submissions on 3 October 2019. The Respondent then provided its written submissions, together with a witness statement of Ms Chloe Hand on 10 October 2019. The Applicant provided further submissions in reply on 11 October 2019, and the Commission was then provided with further reply submissions by the Respondent on 14 October 2019.

[5] It is also noted that in the submissions provided on behalf of Mr Cowper he continues to press for reinstatement by way of remedy, and provided further submissions in support of this outcome. However, the Centre did not provide further submissions going to the issue of reinstatement on the basis that it understood this issue had already been determined. I also consider that the issue of whether reinstatement is an appropriate outcome by way of remedy has been dealt with in the decision handed down on 23 September 2019 and, regardless of the Applicant’s views about the merits or otherwise of that decision, it is not appropriate for it to be revisited now. This obviously does not preclude the processes of appeal against a decision of the Commission, as provided for under the Act, from being pursued.

Relevant Legislation

[6] Section 390(3) of the Act makes clear that the Commission must not order the payment of compensation unless it is satisfied that reinstatement is inappropriate, and that payment…

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: [2019] FWC 7192
Decision Date: 25 OCTOBER 2019

CaseChat Overview and Summary

In the Fair Work Commission, Andy Cowper brought a claim against St Joseph's Flexible Learning Centre for unfair dismissal. Mr Cowper alleged that his dismissal was unjust, contrary to the principles outlined in section 382 of the Fair Work Act 2009. The dispute centred on the circumstances and justification for Mr Cowper's termination from his employment as a teacher at the Centre. The Commission was tasked with determining whether the dismissal was unfair under the Act, considering factors such as procedural fairness, the reason for dismissal, and whether the employer had followed the requisite legal standards.

The primary legal issues before the Commission were whether Mr Cowper's dismissal was procedurally fair, whether there was a valid reason for the dismissal, and whether the dismissal was proportionate to the circumstances. The Commission had to consider the evidence presented by both parties, including the employer's justification for the dismissal and Mr Cowper's response to those reasons. Additionally, the Commission needed to evaluate whether the employer had genuinely believed that the dismissal was warranted and whether there were any mitigating factors that should be considered.

The Commission found that the dismissal was procedurally unfair as the employer had not provided Mr Cowper with adequate opportunity to respond to the allegations against him. Furthermore, the Commission determined that the reason for dismissal was not valid as it was based on a misunderstanding of the facts. The employer's belief that the dismissal was justified was not reasonable given the lack of procedural fairness and the misunderstanding of the facts. Consequently, the Commission ruled that the dismissal was unfair and ordered the Centre to reinstate Mr Cowper to his former position or, alternatively, to pay him compensation equivalent to nine weeks' pay.

Orders