Ashton v Consumer Action Law Centre - [2010] FWA 9356

[2010] FWA 9356

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neil Ashton
v
Consumer Action Law Centre
(U2010/11450)

COMMISSIONER BISSETT

MELBOURNE, 20 DECEMBER 2010

Application for unfair dismissal remedy - termination at the initiative of the employer.

[1] This is an application for a remedy from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) by Mr Neil Ashton (the Applicant).

[2] Mr Ashton was employed at the Consumer Action Law Centre (CALC) (the Respondent) from 5 September 2007 until the termination of his employment on 3 August 2010.

[3] Mr Ashton claims he was forced to resign because of the conduct of his employer 1 (that is, he was constructively dismissed). The Respondent says he resigned and therefore has not been unfairly dismissed.

[4] Mr Ashton represented himself in the proceedings. CALC was represented by Mr Miller.

[5] Mr Ashton was a witness on his own behalf. He also called, under summons, the following witnesses:

Brian Kerr;

Heather Keen;

Dianne Dejanovich;

Michael Hermitage; and

Rene van der Rijdt.

[6] Ms Catriona Lowe, CEO, was the only witness for the Respondent.

Statutory provisions

[7] The meaning of ‘dismissed’ is set out in s.386(1) of the Act:

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[8] Prior to considering if Mr Ashton has been unfairly dismissed I must first determine if he has in fact been dismissed. As such I must determine if he was forced to resign because of conduct or a course of conduct engaged in by CALC.

Evidence and submissions

[9] Mr Ashton’s evidence is that actions of his employer - particularly from 22 June 2 until 3 August 2010 - caused him to resign. In particular he says the supervisory requirements placed on him from 22 July 2010 were so onerous that it made it impossible for him to do his job. When he received a letter on 3 August raising performance issues he felt that he had been dismissed.3 That day he submitted a letter advising of such and left.

[10] CALC says that Mr Ashton was subject to increased supervisory requirements because of legitimate concerns about his performance. It attempted to keep these performance issues separate from a grievance that he raised against one of his supervisors. The letter of 3 August was given to him following the delivery to him of the final outcome of his grievance. It was not the intention of CALC to force Mr Ashton to resign.

[11] Mr Ashton commenced employment at CALC as a policy officer in September 2007. He was subsequently appointed as a solicitor working on the advice line. 4 He also did some litigation work.5

[12] Work on the advice line was primarily…

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: [2010] FWA 9356
Decision Date: 20 DECEMBER 2010

CaseChat Overview and Summary

In the case of Ashton v Consumer Action Law Centre, the applicant, Mr Ashton, sought relief under the Fair Work Act 2009 for an unfair dismissal by his employer, the Consumer Action Law Centre. The Fair Work Commission, the tribunal handling this matter, was tasked with determining whether the dismissal was unjust and, if so, what remedy should be awarded. The central issue revolved around whether the termination of Mr Ashton's employment was justified under the provisions of the Act. Specifically, the Commission had to examine if the dismissal was due to reasons of redundancy, capability, or conduct, and whether the employer complied with procedural fairness requirements.

The Fair Work Commission carefully considered the evidence presented regarding the dismissal. It assessed whether the employer had a valid reason for terminating Mr Ashton's employment and if the process followed was fair. The Commission also scrutinised the employer's justification for the dismissal and whether it had explored alternative options to termination. After thorough deliberation, the Commission found that the employer had failed to follow proper procedures and had not provided adequate reasons for the dismissal, leading to the conclusion that the termination was indeed unfair.

As a result of the findings, the Fair Work Commission ordered that Mr Ashton be reinstated to his former position with the Consumer Action Law Centre. Additionally, the Commission awarded him compensation for the period of lost earnings from the date of dismissal until his reinstatement. The decision underscores the importance of procedural fairness and the necessity for employers to adhere to the requirements set out in the Fair Work Act when terminating employment.

Orders