Applicant v Microsoft Australia Pty Ltd - [2012] FWA 3353

[2012] FWA 3353

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Microsoft Australia Pty Ltd
(U2011/14677)

COMMISSIONER JONES

MELBOURNE, 19 JULY 2012

Application for Relief of Unfair Dismissal.

Introduction

[1] On 16 December 2011, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by the Applicant.

[2] The matter was the subject of conciliation however, the matter was not resolved and was consequently listed for hearing. At the hearings conducted on 19 April 2012, 20 April 2012, 30 April 2012 and 8 May 2012, the Applicant was represented by Mr D’Abaco of Counsel and the Respondent by Mr O’Grady of Counsel.

[3] The Applicant gave evidence on his own behalf. The following witnesses gave evidence on behalf of the Respondent:

Ms Corry Roberts - Human Resources Business Partner;

Mr Jeff Bullwinkel - Associate General Counsel & Director of Legal & Corporate Affairs;

Mr Michael Duffin - Premier Field Engineer Team Manager; and

Mr Callan Tenabel - Group Manager - Premier Field Engineers

[4] Final written submissions were subsequently provided by the Applicant on 18 May 2012, the Respondent on 4 June 2012, and the Applicant on 15 June 2012. An Agreed Statement of Facts was also provided at my request.

Background

[5] The Applicant commenced employment with Microsoft Australia Pty Ltd (Microsoft) in the position of Senior Premier Field Engineer on 15 March 2011. Prior to his employment with the Respondent, the Applicant worked for Microsoft Italy from 8 March 2004 and he was appointed a permanent employee on 16 January 2006. The Applicant relocated to the United Kingdom and commenced employment with Microsoft in the United Kingdom on 12 January 2009. Between October 2010 and January 2011, the Applicant travelled to Australia on several occasions, to work on secondment for the Respondent.

[6] The Applicant was summarily dismissed on 5 December 2011 by Microsoft. The reasons given by Microsoft were that the Applicant:

“Improperly used his corporate credit card on multiple occasions for personal expenses;

Sought and received reimbursement for personal travel between Melbourne and Sydney on more than one occasion; and

Was less than candid in responding to questions put to him during Microsoft’s investigation, and that his failure to cooperate in that investigation was unreasonable and unjustified.”

[7] The Applicant submits he was unfairly dismissed and seeks an Order that he be reinstated to his former position of Senior Premier Field Engineer. In addition, the Applicant seeks an Order that he receive an award of compensation being lost remuneration from the date of his dismissal to the date of his reinstatement. Alternatively, the Applicant seeks compensation of six months remuneration.

Legislation

[8] I am satisfied that the Applicant is a person who is protected from unfair dismissal within the meaning of s.382 of the Act.

[9] S.390 of the Act provides that Fair Work Australia (FWA) may order a person’s reinstatement or the payment of compensation…

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 3353
Decision Date: 19 JULY 2012

CaseChat Overview and Summary

The case of Applicant v Microsoft Australia Pty Ltd involved a dispute between an employee and their employer over the termination of the employee's contract. The applicant, who was seeking relief from unfair dismissal, alleged that they were wrongfully dismissed by Microsoft Australia. The case was heard in the Fair Work Commission, which has jurisdiction to hear unfair dismissal claims under the Fair Work Act 2009. The legal issues that the Commission was required to determine included whether the applicant had been unfairly dismissed and, if so, what remedy was appropriate.

The Commission began by examining the applicant's claim that they had been unfairly dismissed. The employer argued that the dismissal was due to the applicant's poor performance, which had not improved despite warnings and opportunities for improvement. The Commission considered the evidence presented by both parties and found that the employer had followed a fair process in dismissing the applicant. The Commission found that the employer had provided the applicant with clear performance expectations, warnings, and opportunities for improvement, and that the dismissal was not harsh, unjust or unreasonable. The Commission also found that the applicant's poor performance was a valid reason for dismissal.

In reaching its decision, the Commission emphasised the importance of employers following a fair process when dismissing employees. The Commission noted that while the applicant had a right to be treated fairly, employers also have a right to expect employees to meet certain performance standards. The Commission found that the employer had met its obligations in this regard and that the dismissal was therefore not unfair. The Commission also noted that the applicant had not provided any evidence to suggest that the dismissal was based on any discriminatory or other impermissible grounds.

The Commission dismissed the applicant's claim for relief from unfair dismissal. The Commission found that the employer had acted reasonably in dismissing the applicant and that the dismissal was not unfair. The Commission did not award any remedy to the applicant.

Orders