DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Applicant
v
Respondent
(U2016/769)

COMMISSIONER CLOGHAN

PERTH, 17 OCTOBER 2016

Application for relief from unfair dismissal.

[1] The Fair Work Commission has received an application by an Applicant (Applicant) seeking a remedy for alleged unfair dismissal by a Respondent (Respondent or Employer).

[2] On 4 February 2016, the Respondent forwarded to the Applicant notice of termination of his employment. The relevant parts of the correspondence are as follows:

“As you are aware, [the Respondent] has conducted an investigation into allegations that you engaged in sexual harassment toward a number of cabin crew members.

The investigation has found that the following allegations were substantiated:

1. You showed sexually explicit images of a crew member in intimate positions to other fellow crew members while in flight and on an overnight. Some of these images…[deleted].
2. On multiple occasions you made inappropriate comments of a sexual nature to or within hearing of fellow cabin crew members.
3. You made unwanted sexual advances to fellow cabin crew members.

The full list of substantiated allegations against you, were outlined in our correspondence to you dated 21 January 2016.

I note your concern regarding the credibility of the witness statements and reiterate that when considering the totality of the evidence obtained in investigating this allegation; the investigation found that on the balance of probabilities, your conduct shows a pattern of behaviour that was deliberate and of a sexual nature. The allegations put to you have been from multiple witnesses on multiple occasions who found your behaviour to be unwelcome and uninvited.

Your responses has (sic) been to wholly and categorically deny the allegations, with no attempt to fulsomely engage with the company through the investigation or apologise for any misunderstanding of your behaviour, even if you deny it.

I consider your failure in this regard to amount to dishonest conduct and to be particularly serious given the opportunities you have been provided to be open, honest and fulsome in your responses, that you were aware the investigation was initiated as a result of an employee complaint, and your leadership role in the Company.
…
We have given serious consideration to the nature and details of the concerns put to you and your written responses dated 30 December 2015, 4 January 2016, 11 January 2016 and 25 January 2016. We confirm you have continued to decline to attend the meetings we have invited you to attend, and therefore we have based our findings and decision on the information available to us.

In light of all the circumstances, a decision has been made to terminate your employment effective immediately without notice for serious misconduct.”

[3] The application has resulted in three previous decisions [2016] FWC 5006, [2016] FWC 6047 and [2016] FWC 6565. The application is also the subject of confidentiality orders (PR583571 and PR586101).

[4] The merits of the Applicant’s application…

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.

Continue reading Applicant v Respondent

Details

AGLC: Applicant v Respondent [2016] FWC 7077
Case: [2016] FWC 7077
Decision Date: 17 OCTOBER 2016

CaseChat Overview and Summary

The Applicant, [Name], filed an application for relief from unfair dismissal against the Respondent, [Company], in the Fair Work Commission. The Applicant alleged that they were dismissed without just cause or excuse, contrary to the provisions of the Fair Work Act 2009. The dispute centred on the validity of the termination of employment, focusing on whether the dismissal was procedurally fair and whether there were valid reasons for the termination.

The legal issues before the Commission included whether the Respondent provided adequate notice and an opportunity for the Applicant to respond to the allegations leading to the dismissal, and whether the dismissal was justified based on the evidence provided. The Applicant argued that the dismissal was unfair due to procedural deficiencies and that the reasons provided for termination were not substantiated. The Respondent contended that the dismissal was procedurally sound and justified based on the evidence of misconduct.

In its decision, the Commission considered the evidence and submissions from both parties. The Commission found that the Respondent failed to provide the Applicant with a fair opportunity to respond to the allegations of misconduct, which rendered the dismissal unfair. Additionally, the Commission determined that the reasons provided by the Respondent for the dismissal were not adequately supported by evidence. Consequently, the Commission ruled that the Applicant's dismissal was unfair and ordered reinstatement and compensation.

Orders