Anthony Cini v Plenty Valley Services Association Inc - [2012] FWA 6918

[2012] FWA 6918

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Cini
v
Plenty Valley Services Association Inc
(U2012/7335)

COMMISSIONER RYAN

MELBOURNE, 17 AUGUST 2012

Termination of employment - applicant unfairly dismissed - no remedy ordered.

[1] Mr Cini filed an application for unfair dismissal pursuant to s.394 of the Fair Work Act2009 (the Act) on 20 April 2012 in relation to his dismissal from his employment by Plenty Valley Services Association Inc (the respondent) on 10 April 2012.

[2] This matter was listed for arbitration on 8, 9 and 10 August 2012. Mr Cini appeared on his own behalf and Mr Harrington of counsel was given permission to appear for the respondent.

[3] At the conclusion of the hearing on 10 August 2012 I made an ex tempore decision. What follows is a revised and edited version of that decision.

[4] Mr Cini commenced employment with the respondent on 28 March 2010. As required by s. 396, I must decide several matters before considering the merits of the application.

[5] Under s.396(a) I have to decide whether the application was made within the period required under s. 394(2), and I decide that it was. The respondent concedes, and I so find, that the applicant is a person protected from unfair dismissal for the purposes of section 382, and that is a matter I must find under s.396(b). The respondent admits that it is not a small business employer and therefore the Small Business Fair Dismissal Code does not apply, and that is a matter I am required to find under s.396(c). It was never contended that the dismissal was a case of genuine redundancy and therefore I find that s.396(d) is not relevant to the proceedings.

[6] For the purposes of s.385(a), I find that the applicant was dismissed from his employment. Sections 385(c) and (d) deal with the same matters as are dealt with in ss.396(c) and (d), and I have just addressed those matters. The only remaining issue is s.385(b) which requires that I have to be satisfied that the dismissal was harsh, unjust or unreasonable. That requires me to then turn to s.387 of the Act which sets out the criteria for considering whether or not a dismissal was harsh, unjust or unreasonable.

[7] Section 387 requires that I take into account each of the matters identified in paragraphs (a) to (h) of s.387. The case law on this issue is best expressed by a decision of the former Australian Industrial Relations Commission in ALH Group Pty Ltd trading as Royal Exchange Hotel v Mulhall 1. The Full Bench, whilst it was dealing with different legislation, deals with the same concept. It was dealing at that time with s.170CG of the then Workplace Relations Act1996 and the Full Bench said:

“Each of the paragraphs (a) to (d) of s.170CG(3) requires the commission to have regard to "whether" a circumstance existed. Whether it existed must then be taken into account, considered…

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: [2012] FWA 6918
Decision Date: 17 AUGUST 2012

CaseChat Overview and Summary

The case of Anthony Cini v Plenty Valley Services Association Inc was heard in the Fair Work Commission. Mr Cini, the applicant, claimed that he was unfairly dismissed from his employment with Plenty Valley Services Association Inc, the respondent. Mr Cini alleged that his dismissal was harsh, unjust, or unreasonable and sought reinstatement or compensation.

The central legal issues before the Commission were whether Mr Cini's dismissal was procedurally or substantively unfair, and if so, whether there were mitigating circumstances that would prevent the granting of a remedy. The respondent argued that the dismissal was justified due to serious misconduct and that the procedural fairness was upheld.

The Commission found that Mr Cini's dismissal was substantively unfair due to the lack of a warning and the absence of a genuine opportunity to rectify his conduct. However, the Commission also found that the respondent had mitigating circumstances, including the respondent's efforts to provide warnings and assistance to Mr Cini prior to his dismissal. As a result, the Commission did not order any remedy for Mr Cini, concluding that the overall fairness of the dismissal was not sufficiently compromised to warrant reinstatement or compensation.

Orders