Boulic v Robot Building Supplies - [2010] FWA 6905

[2010] FWA 6905

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yann Boulic
v
Robot Building Supplies
(U2010/7056)

COMMISSIONER RYAN

MELBOURNE, 9 SEPTEMBER 2010

Application for unfair dismissal remedy - compensation.

Decision Summary

[1] I find that Mr Boulic was unfairly dismissed from his employment.

[2] I find that reinstatement is not appropriate.

[3] I order that compensation of $2,075.00 be paid by Robot Building Supplies to Mr Boulic.

Decision

Preliminary

[4] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

[5] I will deal with each of the matters in turn.

Section 396(a)

[6] The application was made on 17 March 2010 and Mr Boulic had been dismissed on 4 March 2010. Therefore, I find that the application was made within the period required in subsection 394(2), namely, within 14 days after the dismissal took effect.

Section 396(b)

[7] The terms of the Commercial Sales 2010 [MA000083] applied to Mr Boulic in relation to his employment with Robot Building Supplies. Therefore, I find that the applicant was protected from unfair dismissal within the meaning of s.382 of the Act.

Section 396(c)

[8] This section has no relevance in these matters as the Small Business Fair Dismissal Code is not applicable to Robot Building Supplies.

Section 396(d)

[9] This section has no relevance in these matters as it is agreed by both parties that the termination of employment of Mr Boulic was not a redundancy situation.

Unfair Dismissal

[10] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia (FWA) is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

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

[11] Sections 385 (c) and (d) have no relevance in these matters.

[12] Whether a person has been dismissed for the purpose of section 385(a) is to be determined in accordance with section 386.

Was Mr Boulic Dismissed

[13] Section 386(1) provides that:

“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.”

[14] Sections 386(2) and (3) have no relevance in this matter.

[15] Section 386(1) defines dismissed in the alternative. The distinction that occurs between paragraphs (a) and (b) does not appear to have been intended by Parliament to be…

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 6905
Decision Date: 9 SEPTEMBER 2010

CaseChat Overview and Summary

The case of Boulic v Robot Building Supplies involved the applicant seeking relief from the Fair Work Commission for unfair dismissal. The applicant, Mr Boulic, claimed that his termination by Robot Building Supplies was unjust and that he was entitled to compensation. The Fair Work Commission was the court that presided over this matter.

The central legal issue the court had to resolve was whether Mr Boulic's dismissal was indeed unfair under the Fair Work Act 2009. The court needed to consider whether the dismissal complied with the provisions of the Act, specifically whether the employer had a valid reason for the termination and whether the process followed was procedurally fair. Additionally, the court examined whether the employer had acted in accordance with the requirements set out in the Act regarding genuine operational reasons.

The Fair Work Commission found that Mr Boulic's dismissal was indeed unfair. The employer failed to provide a valid reason for the termination, and the process was deemed to be procedurally deficient. The Commission highlighted that the employer did not follow the correct procedures as outlined in the Act, and there was no evidence to support a genuine operational reason for the dismissal. As a result, the Commission ordered the employer to pay Mr Boulic compensation for the unfair dismissal. The precise amount of compensation was determined based on the specific circumstances of the case, including Mr Boulic's length of service and his salary at the time of termination.

Orders