DECISION

Fair Work Act 2009
s.604—Appeal of decision

Bernard Mwango
v
WesTrac Pty Ltd
(C2018/3440)

VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SIMPSON

SYDNEY, 27 SEPTEMBER 2018

Appeal against decision ([2018]) FWC 3135 of Commissioner Saunders at Newcastle on 1 June 2018 in matter number U2017/10323.

[1] Mr Bernard Mwango (Appellant) was dismissed from his employment as a Laboratory Technician with WesTrac Pty Ltd (Respondent) on misconduct grounds following an incident that took place on 17 August 2017 involving another Laboratory Technician, Mr Matthew Crotty. Mr David Lai, the supervisor for the Appellant and Mr Crotty at the time, witnessed part of the incident. Pending an investigation into the incident, the Appellant was suspended from his employment with the Respondent on 21 August 2017. On 7 September 2017, the Appellant was dismissed and was paid four weeks’ wages in lieu of notice.

[2] On 22 September 2017, the Appellant lodged an unfair dismissal application with the Fair Work Commission (Commission) under s.394 of the Fair Work Act2009 (Cth) (Act). Having found that there was no binding settlement agreement reached between the parties in a settlement discussion which took place on 16 October 2017; 1 Commissioner Saunders proceeded to hear the matter and determined that the Appellant’s dismissal was not harsh, unjust or unreasonable.² Accordingly, on 1 June 2018, the Appellant’s unfair dismissal application was dismissed.

[3] On 22 June 2018, the Appellant lodged an appeal against Commissioner Saunders’ Decision, and on 17 September 2018 we heard the parties on permission to appeal. In the hearing, the Appellant appeared on his own behalf and Mr Rogan McMahon, solicitor of Australian Industry Group, appeared for the Respondent.

The appeal

[4] In the Appellant’s Notice of Appeal, it was submitted that his application for an unfair dismissal remedy was dismissed based on “fake” and “forged” statements, that not all evidence provided to the Commission was considered, and that the Respondent had allegedly “lied” in the proceedings at first instance.

[5] In the Appellant’s submissions filed on 10 September 2018, the Appellant contended that the Commissioner fell into jurisdictional error because the Decision was allegedly founded upon witness evidence which was not credible, incorrect facts, and bias and discrimination. In support of these contentions, the Appellant attached an extensive amount of documentary materials which attempted to, inter alia, demonstrate;

• that there was a number of inconsistencies, falsified statements, and forged documents in the Respondent’s evidence at first instance;

• that the statements submitted by the Respondent did not comply with company policy as they were typed, unsigned, unwitnessed, dated incorrectly, and not completed prior to the end of shift;

• that no statement or correspondence was obtained from the Appellant prior to the first warning being issued, that he had not been requested to make a statement after the 17 August 2017 incident (whereas Mr Lai and Mr Crotty was), that no response was received in relation to his appeal of the first…

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: [2018] FWCFB 5967
Decision Date: 27 SEPTEMBER 2018

CaseChat Overview and Summary

Bernard Mwango has appealed against a decision of the Fair Work Commission, handed down by Commissioner Saunders at Newcastle on 1 June 2018, in matter number U2017/10323. The primary issue before the court was whether the respondent, WesTrac Pty Ltd, had contravened section 510 of the Fair Work Act 2009 by terminating the employment of the applicant without a valid reason. The applicant, a former employee of the respondent, alleged that he was dismissed due to his race and country of origin, in violation of anti-discrimination laws.

The legal issues before the court included whether the applicant had established a prima facie case of unlawful discrimination, and if so, whether the respondent could justify the termination under the exceptions outlined in the Fair Work Act. The applicant argued that the termination was discriminatory, pointing to the lack of any valid reason provided by the respondent and the timing of the dismissal. The respondent contended that the dismissal was justified due to the applicant's misconduct and that there was no evidence of discriminatory intent.

The court considered the evidence presented by both parties, including witness testimonies and the respondent's internal policies. The court found that the applicant had not established a prima facie case of unlawful discrimination. It was determined that the respondent had provided a valid reason for the termination, unrelated to the applicant's race or country of origin. The court also found that the respondent had followed its own policies in dismissing the applicant, and there was no evidence of discriminatory intent. Consequently, the appeal was dismissed.

The court ordered that the costs of the appeal be paid by the applicant, Bernard Mwango, to the respondent, WesTrac Pty Ltd. The court also noted that the original decision of the Fair Work Commission, finding that the respondent had not contravened section 510 of the Fair Work Act, was affirmed.

Orders