DECISION

Fair Work Act 2009
s.365—General protections

Anthony Hyde
v
Randstad Pty Limited; Brisbane City Council
(C2020/6713)

DEPUTY PRESIDENT ASBURY

BRISBANE, 1 APRIL 2021

Application to deal with contraventions involving dismissal.

Background

[1] By application made on 1 September 2020 under s. 365 of the Fair Work Act 2009 (FW Act), Mr Anthony Hyde (Applicant) seeks that the Fair Work Commission deal with a dismissal dispute said to involve a contravention of the general protections provisions of the FW Act. Mr Hyde was employed by Randstad Pty Limited (first Respondent). The first Respondent provides labour hire services to the Brisbane City Council (second Respondent).

[2] The Applicant was engaged in the performance of horticultural and labouring duties for the second Respondent from February 2016. On 11 August 2020, the Applicant sustained an injury while at work which he stated occurred when a work colleague kicked a football towards the Applicant causing him to fall and injure his groin. The Applicant states that on 11 August he was contacted by a supervisor employed by the second Respondent who told him that: “This is not a good look for Council. You’ve just returned from work after being away due to an injury and now this has happened. We are going to have to let you go.”

[3] In his Form F8 Application, the Applicant contended that he was dismissed on 11 August 2020 and that he submitted a Workers’ Compensation claim for his injury on 12 August 2020. The Applicant also stated in the Form F8 that he received an Employment Separation Certificate on 25 August 2020 stating that his employment was terminated due to “end of season or contract”. The Applicant asserts that the first Respondent contravened ss. 340 and 351 of the FW Act by taking adverse action against him because he exercised a workplace right by making a workers’ compensation claim. The Applicant also contends that the second Respondent was involved in the contraventions.

[4] The Applicant’s claims are met with a jurisdictional objection by the first Respondent on the basis that the first Respondent denies that it terminated the Applicant’s employment and instead asserts that when his assignment with the second Respondent ended, the Applicant terminated his own employment by requesting an Employment Separation Certificate rather than remaining on the first Respondent’s system to be placed with another organisation. This Decision concerns the jurisdictional objection.

Hearing

[5] Directions were issued for the hearing and determination of the jurisdictional objection, requiring the parties to file and serve outlines of submissions and statements of evidence they intended to rely on at hearing. Permission was granted for the Applicant to be represented by Ms Demarco, a solicitor with the firm Demarco Law, on the basis that I was satisfied that the matter was of sufficient complexity and that issues of fairness did not arise, given that the Respondent was represented by its Industrial Relations Business Partner, Mr Lewis. I was also…

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: [2021] FWC 1745
Decision Date: 1 APRIL 2021

CaseChat Overview and Summary

Anthony Hyde brought an application against Randstad Pty Limited, seeking remedies for alleged contraventions under the Fair Work Act 2009 involving his dismissal. The case was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the dismissal was unlawful and, if so, what remedies should be awarded to the applicant.

The court examined the procedural fairness of the dismissal process and the merits of the employer's justification for termination. It was essential to determine whether the employer had acted in accordance with the provisions of the Fair Work Act and whether the dismissal complied with the requirements of procedural fairness. Additionally, the court had to consider the appropriate remedy if it found that the dismissal was unlawful, including whether reinstatement or compensation was warranted.

In its judgment, the court found that the dismissal was indeed unlawful due to procedural irregularities and a lack of substantive justification. The employer had failed to provide adequate reasons for the dismissal, and the process did not adhere to the principles of natural justice. The court held that the applicant was entitled to reinstatement, with back pay, as the most appropriate remedy given the circumstances. The employer's failure to justify the dismissal led to this conclusion.

The final orders included the reinstatement of Anthony Hyde to his previous position with Randstad Pty Limited, with all associated entitlements, and the payment of back pay from the date of dismissal until the date of reinstatement. Additionally, the employer was directed to pay compensation for the unlawful termination.

Orders