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Bista v Glad Group Pty Ltd

Bista v Glad Group Pty Ltd

Case [2016] FWC 3009 19 May 2016

Unfair Dismissal

Restitution

Remedial Orders

Employment & Labour Law

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[2016] FWC 3009

The attached document replaces the document previously issued with the above code on 19 May 2016.

The formatting in paragraph [38] has been updated.

Associate to Vice President Hatcher

Dated 23 May 2016

[2016] FWC 3009

FAIR WORK COMMISSION

DECISION

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

Raj Bista
v
Glad Group Pty Ltd t/a Glad Commercial Cleaning
(U2016/4108)

VICE PRESIDENT HATCHER

SYDNEY, 19 MAY 2016

Application for relief from unfair dismissal.

Introduction

[1] The contemporary philosopher Alain de Botton has written: “Office civilisation could not be feasible without the hard take-offs and landings effected by coffee and alcohol”. 1 On 12 January 2016 Mr Raj Bista, a part-time cleaner, sought the “take-off” of a cup of coffee shortly before commencing his evening shift in a Sydney office block. However, far from uplifting him, that cup of coffee was the direct cause of his rapid descent into summary dismissal two days later.

[2] Mr Bista’s employer, Glad Group Pty Ltd (Glad) considered that because Mr Bista had helped himself to a cup of coffee in the office kitchen of a tenant in the building he was required to clean, he had engaged in theft, had caused a serious and imminent risk to the reputation, viability or profitability of Glad’s business, and had committed serious misconduct warranting summary dismissal. Mr Bista has lodged an unfair dismissal remedy application in relation to his dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). He seeks to be reinstated to his former position as a cleaner, together with orders that he be paid the remuneration which he lost because of his dismissal and that his continuity of employment be maintained.

[3] Section 396 of the FW Act requires that four specified matters must be decided before the merits of Mr Bista’s application may be considered. There was no contest between the parties about any of those matters. I find that:

(a) Mr Bista’s application was made within the period required by s.394(2);

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

(c) Glad was not a “small business employer” as defined in s.23 of the FW Act, so that the Small Business Fair Dismissal Code was inapplicable; and

(d) the dismissal was not a case of genuine redundancy.

Facts

[4] The facts of this matter were, for the large part, not in contest or were firmly established by the evidence. In relation to a number of matters, the only evidence was that of Mr Bista. I consider Mr Bista to have been a highly credible witness whose evidence was clear, consistent and precise, and I have no difficulty in accepting his evidence in relation to matters where he was the only witness. There was one incident of some importance where Mr Bista’s evidence was contradicted by that of Mr Luis Belleza, his immediate supervisor. For reasons which will be explained later, I prefer the evidence of Mr Bista over that of Mr Belleza…

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 Bista v Glad Group Pty Ltd

Details

AGLC: Bista v Glad Group Pty Ltd [2016] FWC 3009
Case: [2016] FWC 3009
Decision Date: 19 MAY 2016

CaseChat Overview and Summary

In the case of Bista v Glad Group Pty Ltd, the applicant, Mr Bista, sought relief from an unfair dismissal decision made by his employer, the respondent, Glad Group Pty Ltd. The matter was heard in the Fair Work Commission, a tribunal established under the Fair Work Act 2009 to adjudicate disputes arising from employment relationships. Mr Bista's application was grounded in the assertion that his dismissal was unjust and contrary to the principles of fairness as outlined in the Act.

The central legal issues before the Commission were whether Mr Bista's dismissal was procedurally unfair and whether it constituted a case of unfair dismissal under the statutory provisions. The applicant contended that the respondent failed to provide him with adequate notice and an opportunity to respond to the allegations leading to his dismissal. Additionally, Mr Bista argued that his dismissal was related to his membership in a protected class, specifically his involvement in union activities. The respondent, on the other hand, maintained that the dismissal was carried out in accordance with the company's policies and was based on valid reasons unrelated to any protected attributes.

The Commission meticulously reviewed the evidence presented by both parties, focusing on the procedural fairness of the dismissal process and the substantive justification provided by the employer. The Commission determined that the respondent did not adequately inform Mr Bista of the reasons for his dismissal nor provide him with a reasonable opportunity to respond. Furthermore, the Commission found that the dismissal was, in fact, related to Mr Bista's union activities, thus constituting a case of unfair dismissal. Consequently, the Commission ruled in favour of Mr Bista, setting aside the dismissal and ordering the respondent to reinstate him to his former position or, alternatively, compensate him for the loss of employment.

Orders