[2018] FWC 3135 [Note: An appeal pursuant to s.604 (C2018/3440) was lodged against this decision - refer to Full Bench decision dated 22 June 2018 [[2018] FWCFB 5967] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bernard Mwango
v
WesTrac Pty Ltd
(U2017/10323)

COMMISSIONER SAUNDERS

NEWCASTLE, 1 JUNE 2018

Application for relief from unfair dismissal – aggressive conduct – valid reason for dismissal – procedural fairness afforded to the applicant – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Mr Bernard Mwango was dismissed from his employment as a Laboratory Technician with WesTrac Pty Ltd (WesTrac) on misconduct grounds following an incident that took place on 17 August 2017 involving another WesTrac Laboratory Technician, Mr Matthew Crotty. Mr David Lai, the supervisor for both Mr Mwango and Mr Crotty at the time, witnessed part of the incident.

[2] Pending an investigation into the incident, Mr Mwango was suspended from his employment with WesTrac on 21 August 2017. On 7 September 2017, Mr Mwango was dismissed and was paid four weeks’ wages in lieu of notice. Mr Mwango alleges that his dismissal was harsh, unjust and unreasonable. WesTrac denies those allegations.

[3] In an earlier decision I found, contrary to WesTrac’s contention, that Mr Mwango and WesTrac had not reached a binding settlement of Mr Mwango’s unfair dismissal claim. 1 As a result, Mr Mwango was entitled to continue to pursue his unfair dismissal application.

[4] I heard this matter in Newcastle on 15 and 16 March 2017. Mr Mwango gave evidence in support of his case. WesTrac adduced evidence in support of its case from Ms Alysha Fletcher, HR Advisor, Mr Rodney Mudford, Business Development Manager, Mr Brett Ward, Operations Support Manager, Mr David Lai, Laboratory Operations Supervisor, and Mr Matthew Crotty, Laboratory Technician.

Initial matters to be considered

[5] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of Mr Mwango’s application.

[6] There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mr Mwango’s application was made within the period required in s.394(2) of the Act;

(b) Mr Mwango was a person protected from unfair dismissal;

(c) WesTrac was not a “small business employer” as defined in s.23 of the Act, so the Small Business Fair Dismissal Code does not apply to the dismissal; and

(d) Mr Mwango’s dismissal was not a case of genuine redundancy.

Was Mr Mwango’s dismissal unfair?

[7] It remains, therefore, for me to consider whether Mr Mwango’s dismissal was harsh, unjust or unreasonable. 2 Section 387 of the Act states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its…

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] FWC 3135
Decision Date: 1 JUNE 2018

CaseChat Overview and Summary

Bernard Mwango brought an application for relief from unfair dismissal against his former employer, WesTrac Pty Ltd. The dispute arose from the applicant's termination following his alleged aggressive conduct towards a colleague. Mwango claimed that his dismissal was unfair, unjust, or unreasonable, while WesTrac argued that the dismissal was justified due to the applicant's conduct. The case was heard in the Fair Work Commission.

The legal issues before the court included whether the employer had valid reasons to terminate the applicant's employment and whether the procedural fairness was observed during the dismissal process. Additionally, the court needed to determine whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The applicant argued that his dismissal was unfair because he was not given an opportunity to explain his conduct and present his side of the story. The employer, on the other hand, contended that the dismissal was justified and procedural fairness was afforded to the applicant.

The court found that WesTrac had a valid reason to dismiss Mwango due to his aggressive conduct towards a colleague, which constituted serious misconduct. The court also held that the procedural fairness was observed as the applicant was given an opportunity to respond to the allegations against him. Furthermore, the court concluded that the dismissal was not harsh, unjust, or unreasonable, taking into account the nature of the misconduct and the employer's response. Consequently, the applicant's claim for relief from unfair dismissal was dismissed.

No additional orders were made by the court.

Orders