Brock Austin v Sandgate Taphouse Pty Ltd - [2023] FWC 3084

[2023] FWC 3084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brock Austin
v

Sandgate Taphouse Pty Ltd

(U2023/6319)

COMMISSIONER SIMPSON

BRISBANE, 23 NOVEMBER 2023

Application for an unfair dismissal remedy – Performance issues – Dismissal not unfair – Application dismissed.

On 12 July 2023, Mr Brock Austin (the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Sandgate Taphouse Pty Ltd (the Respondent).

I listed the matter for an initial directions hearing by telephone on 13 September 2023. The matter was listed for hearing of the merits of the application by video using Microsoft Teams on 25 October 2023.

At the hearing, the Applicant was represented by Mr Thomas Allan, solicitor of Allan Bullock Solicitors & Advocates. The Respondent was represented by Ms Bianca Mendelson of counsel, instructed by Mr Hamish Procter, solicitor of Aitken Legal.

The Applicant filed written submissions and a witness statement on 28 September 2023. On 12 October 2023, the Respondent filed written submissions and a witness statement of Mr Ian Van Der Woude, a former director of the Respondent. The Applicant then filed further submission in reply on 18 October 2023, and a second witness statement on 19 October 2023.

The Applicant was dismissed from his employment on the Respondent’s initiative on 29 June 2023. The application was filed on 12 July 2023, within 21 days of the dismissal. The Applicant commenced employment with the Respondent on 21 October 2022 as venue manager on a full-time basis and completed a period of employment in excess of the minimum employment period.

Relevant Legislation

Section 385 of the Act states that a person has been unfairly dismissed if:

(a)   the person has been dismissed; and
(b)   the dismissal was harsh, unjust or unreasonable; and
(c)   the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)   the dismissal was not a case of genuine redundancy.

The question for determination is whether the Applicant’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, which 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 effect on the safety and welfare of other employees); and
(b)   whether the person was notified of that reason; and
(c)   whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)   any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
(e)   if the dismissal related to unsatisfactory performance by the person—whether the person had been warned…

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: [2023] FWC 3084
Decision Date: 23 NOVEMBER 2023

CaseChat Overview and Summary

In Brock Austin v Sandgate Taphouse Pty Ltd, the Fair Work Commission dismissed an unfair dismissal claim by Mr Austin. The Commission found that the employer had a valid reason for dismissing Mr Austin due to his poor performance, which was not improving despite multiple discussions and opportunities to address the issues. The employer's lack of a formal human resources department did not impact the validity of the dismissal, as the employer had clearly communicated the performance issues to Mr Austin. The Commission concluded that the dismissal was not harsh, unjust or unreasonable, considering the totality of the circumstances. The application for an unfair dismissal remedy was therefore dismissed.

Orders