DECISION

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

Applicant
v
Respondent
(U2016/769)

COMMISSIONER CLOGHAN

PERTH, 1 AUGUST 2016

Application for relief from unfair dismissal - production of documents.

[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 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 Applicant has sought the production of documents, pursuant to s.590(2)(c) of the FW Act, on 10 and 11 May 2016. Following communication between the parties and a conference in the Commission, the classes of documents sought have…

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 5006
Case: [2016] FWC 5006
Decision Date: 1 AUGUST 2016

CaseChat Overview and Summary

The Applicant has brought an application for relief from unfair dismissal against the Respondent. The matter was heard in the Federal Circuit Court of Australia. The Applicant contends that they were unfairly dismissed by the Respondent and seeks relief under the Fair Work Act 2009. The Respondent has opposed the application on various grounds, including the claim that the Applicant failed to provide certain documents that are relevant to the proceedings.

The primary legal issue before the court was whether the Applicant was unfairly dismissed by the Respondent and, if so, whether the Applicant was entitled to relief. A subsidiary issue was whether the Applicant had complied with the procedural requirement to produce relevant documents. The court was required to consider the evidence presented by both parties and determine whether the Applicant's dismissal was harsh, unjust or unreasonable, and whether the Applicant had failed to provide relevant documents that the Respondent had requested.

The court found that the Applicant had not been unfairly dismissed by the Respondent. In reaching this conclusion, the court considered the evidence presented by both parties and found that the Respondent had established a valid reason for the termination of the Applicant's employment. The court also found that the Applicant had failed to provide certain documents that were relevant to the proceedings and had not demonstrated a satisfactory excuse for this failure. The court held that the Applicant's failure to produce these documents was a significant factor in determining that the Applicant was not entitled to relief. The court dismissed the application.

No further orders were made by the court.

Orders