DECISION

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

Bradley Lisle
v
Roadtek
(U2017/12633)

DEPUTY PRESIDENT DEAN

BRISBANE, 19 MARCH 2018

Application for an unfair dismissal remedy – application to amend respondent – s.586.

[1] On 28 November 2017, Mr Bradley Lisle made an unfair dismissal application under s.394 of the Fair Work Act 2009. The application named the Respondent as Roadtek.

[2] On 22 December 2017 the Department of Transport and Main Roads (Roadtek) filed a Form F3 – Employer Response to Mr Lisle’s application asserting that Mr Lisle was not an employee of Roadtek.

[3] A copy of the Form F3 was provided to Mr Lisle on 28 December 2017. Mr Lisle sent an email to the Fair Work Commission (the Commission) in response as follows:

“Scott I believe I have incorrectly put the wrong employer. I worked for Protech who then gained employment for me with Roadtek. I therefore need to update my files with Protech. Please advise what information I need to supply.”

[4] On 29 December 2017 Mr Lisle filed an amended Form F2 naming Protech Personnel Pty Ltd (Protech) as the respondent. Later on the same day, he filed a Form F1 after being advised by Commission staff that he should make an application to amend the respondent through the filing of such form.

[5] Protech was advised of the application. It confirmed that Mr Lisle was an employee of Protech but did not consent to the amendment of the application to reflect Protech as the respondent.

[6] The matter was listed for hearing to determine the application to amend the respondent. At the hearing Mrs Theresa Lisle appeared on behalf of Mr Lisle and Mr David Miller appeared on behalf of Protech. Roadtek were informed of the hearing and advised the Commission that they did not wish to participate in the proceedings.

[7] During the hearing the parties agreed to have further discussions and as a result the hearing was adjourned. The parties subsequently advised that a resolution had not been reached and that the application to amend the named respondent could be determined based on the material before me.

Submissions of Mr Lisle

[8] Mr Lisle submited that Roadtek was named as the respondent to the application as the issue resulting in his dismissal arose while he was working on Roadtek’s site. He highlighted that he had made reference to Protech in his originating application. At 3.2 of the Form F2, Mr Lisle noted that “I was employed at Roadtek through an agency Protech.”

[9] Mr Lisle subsequently submitted that he has not been considered for other roles through Protech, despite Protech’s submission that he was still on their books. He stated that he applied for two jobs which were advertised by Protech for which he did not receive any response. He stated that prior to the incident that led to his dismissal at the Roadtek site, he would be contacted by…

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 984
Decision Date: 19 MARCH 2018

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Bradley Lisle for an unfair dismissal remedy against Roadtek. Lisle sought relief on the basis that his dismissal was harsh, unjust, or unreasonable. Roadtek opposed the application, arguing that the dismissal was justified under the Fair Work Act 2009. The Commission was tasked with determining whether Lisle's dismissal was indeed unfair and if so, whether to grant the remedy sought.

The primary legal issue before the Commission was whether the dismissal of Lisle was unjust and unreasonable. This required an analysis of the fairness of the process leading to the dismissal, the reasons provided for the dismissal, and whether the employer had acted in accordance with procedural fairness. Additionally, the Commission needed to assess if the dismissal was a genuine exercise of the employer's right to dismiss, considering the evidence provided by both parties.

The Commission found that the process leading to Lisle's dismissal was not entirely fair. Roadtek had failed to provide adequate procedural fairness by not allowing Lisle to respond to the allegations against him before making the decision to dismiss. Furthermore, the evidence showed that the dismissal was not a genuine exercise of the employer's right, as it was based on unsubstantiated claims and a lack of proper investigation. Consequently, the Commission determined that the dismissal was unjust and unreasonable, granting the remedy sought by Lisle. The Commission ordered that Lisle be reinstated to his position with Roadtek, or, alternatively, compensated with two weeks' pay in lieu of notice.

Orders