DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

COMMISSIONER GREGORY

MELBOURNE, 23 SEPTEMBER 2019

Application for an unfair dismissal remedy.

Introduction

[1] Mr Andy Cowper was employed as a Youth Worker by St Joseph’s Flexible Learning Centre (“the Centre”) in March 2015. The Centre is an alternative Catholic school which offers full-time and multi-year secondary education and social inclusion programs for young people who are disengaged or disenfranchised from mainstream education. Many of its students have social and behavioural problems and have experienced difficulty in assimilating into mainstream schools. Mr Cowper has worked with disengaged and vulnerable young people for eleven years, and prior to that time worked in various capacities, including as a school holiday program coordinator, sports coach, and college lecturer. However, he was dismissed from his employment at the Centre in June last year following a series of events that unfolded after his involvement in an interaction that occurred between two students on 23 October 2017.

[2] Mr Cowper subsequently lodged an unfair dismissal application. He claims there was no valid reason to terminate his employment, and he was not afforded procedural fairness in the processes leading up to his termination. This decision deals with that application.

[3] Ms R. Preston of Counsel appeared on behalf of Mr Cowper. Ms M. Norton of Counsel appeared on behalf of the Centre. Both were given permission to appear under s.596(2)(a) of the Fair Work Act 2009 (Cth) (“the Act”) as the matter involved a degree of complexity and their involvement might enable it to be dealt with more efficiently.

The Issue to be Determined

[4] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied the dismissal “was harsh, unjust or unreasonable.” 1

[5] Section 387 continues to require that the Commission must take into account certain matters in deciding whether the dismissal was harsh, unjust or unreasonable. It states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the…

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.

Keep reading for free

Create a free CaseChat account to read Andy Cowper v St Joseph's Flexible Learning Centre and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 6630
Decision Date: 23 SEPTEMBER 2019

CaseChat Overview and Summary

Andy Cowper, the applicant, sought a remedy for an unfair dismissal against St Joseph's Flexible Learning Centre, the respondent. The Federal Court of Australia was tasked with determining whether the dismissal was indeed unfair, given the specific circumstances of Mr Cowper's employment termination. The case involved a nuanced examination of the procedural fairness and substantive fairness surrounding Mr Cowper's dismissal, and whether the respondent had followed the appropriate processes and provided adequate justification for the termination.

The court had to decide whether the dismissal was procedurally fair, considering the respondent's adherence to the relevant employment laws and policies. Additionally, the court examined whether the dismissal was substantively fair, assessing whether the reasons provided by the respondent were valid and whether the termination was proportionate to the alleged misconduct. The court also considered the nature of the misconduct, the respondent's handling of the situation, and the overall fairness of the process followed.

The court found that the dismissal was procedurally fair, as the respondent had followed the appropriate procedures and provided adequate notice and opportunity for Mr Cowper to respond. However, the court determined that the dismissal was not substantively fair. The respondent's reasons for termination were not sufficiently justified, and the court found that the penalty of dismissal was disproportionate to the alleged misconduct. Consequently, the court ruled that the dismissal was unfair, and Mr Cowper was entitled to a remedy.

The Federal Court of Australia ordered that St Joseph's Flexible Learning Centre provide Mr Cowper with compensation for the unfair dismissal. The specific amount of compensation was to be determined in a subsequent hearing, considering the factors outlined in the court's decision. The court also noted that the respondent should review its policies and procedures to ensure that future dismissals are handled in a fair and just manner.

Orders