DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Dunne
v
RePipe Pty Ltd
(U2014/1953)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 27 MAY 2015

Application for relief from unfair dismissal - small business fair dismissal code - continuing misconduct - valid reason - dismissal not unfair.

[1] On 2 June 2014 Mr Dunne lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW act) in relation to the termination of his employment with Repipe Pty Ltd (Repipe). Mr Dunne’s application was initially considered in the context of a submission relative to an apprehension of bias, by Williams C. A decision 1 was issued on 8 October 2014. Notwithstanding this decision, the application was referred to me for determination on 8 April 2015. It was the subject of a hearing in Perth on 15 May 2015.

[2] At this hearing Mr Dunne represented himself. Mr Howlett of counsel represented Repipe pursuant to a grant of permission made under s.596(2)(a) of the FW Act. Mr Dunne did not oppose that permission request.

[3] Mr Dunne commenced working for Repipe in January 2011. He worked as a plumber. His employment was summarily terminated on 19 May 2014. Mr Dunne lodged his application within the statutory time limit and there is no dispute that he was a person who was protected from unfair dismissal.

[4] There is no dispute that at the time of the termination of Mr Dunne’s employment, Repipe employed fewer than 15 employees and that the Small Business Fair Dismissal Code (the code) therefore has operation.

[5] Section 385 states:

“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.”

[6] This means that, if the termination of Mr Dunne’s employment was consistent with the code, it cannot be unfair. Section 396 requires that I consider this issue as an initial issue.

[7] Whilst I have considered all of the material provided to me, I have briefly summarised the evidence in the following terms.

[8] Mr Dunne’s evidence was that the termination of his employment on 19 May 2014 occurred during a telephone call from Ms Outram about which he had not been given any advance notice. Mr Dunne asserted that he was not told of the reason for his dismissal. Mr Dunne advised that he thought that it could relate to his challenge to the safety practices followed by Repipe during the use of class B high pressure water jetting. Mr Dunne asserted that he was told that he was summarily dismissed and that he was required to immediately remove his tools from his work car. His…

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: [2015] FWC 3390
Decision Date: 27 MAY 2015

CaseChat Overview and Summary

In the Fair Work Commission, Anthony Dunne sought relief from his dismissal by RePipe Pty Ltd. The nature of the dispute was whether Dunne's dismissal was unfair under the small business fair dismissal code, focusing on whether there was a valid reason for his termination due to continuing misconduct. The court had to decide if the employer had a valid reason for dismissal and whether the dismissal was procedurally fair.

The legal issues before the court were whether RePipe Pty Ltd had a valid reason for terminating Dunne's employment due to his alleged misconduct, and if the dismissal process complied with the small business fair dismissal code. Dunne argued that the dismissal was unfair, while RePipe maintained that the dismissal was justified due to Dunne's continuing misconduct and that the process followed was fair.

The court found that RePipe Pty Ltd had a valid reason to dismiss Dunne, as there was evidence of continuing misconduct. The employer had taken appropriate steps to address the misconduct, including warnings and a formal meeting. The court determined that the dismissal process was procedurally fair as it followed the small business fair dismissal code, and Dunne was given the opportunity to respond to the allegations against him. Consequently, the dismissal was not considered unfair.

As a result, the court dismissed Dunne's application for relief from unfair dismissal. The court's decision upheld the dismissal of Anthony Dunne by RePipe Pty Ltd, finding that the employer had a valid reason for the termination and that the process was fair.

Orders