[2018] FWC 3967 [Note: An appeal pursuant to s.604 (C2018/3967) was lodged against this decision - refer to Full Bench decision dated 25 July 2018 [[2018] FWCFB 5972] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charles Tham
v
Hertz Australia Pty Limited T/A Hertz
(U2017/10023)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 4 JULY 2018

Application for an unfair dismissal remedy.

[1] Mr Charles Tham (Applicant) commenced working for Hertz Australia Pty Limited T/A Hertz (Hertz) (Respondent) on 25 November 2016 as Vehicle Services Attendant until he was dismissed on 25 August 2017 at the initiative of the employer. The dismissal took effect immediately.

[2] On 14 September 2017, Mr Tham made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Hertz.

[3] Mr Tham was dismissed for engaging in misconduct by providing false and misleading information to Hertz during the recruitment process. Mr Tham submitted that his dismissal was unfair as he had notified the Respondent of the inaccurate information in his resume prior to the commencement of his employment and that it was disproportionate in the circumstances.

[4] Hertz denied that Mr Tham had provided notification of the inaccurate information and submitted that Mr Tham had intentionally lied on his resume so as to avoid being asked questions regarding a four year gap in his employment history.

Procedural Background

[5] This matter was conciliated on 18 October 2017 however remained unresolved. The matter was subsequently listed for arbitration before me on 3 May 2018.

[6] Mr Tham appeared and gave evidence on his own behalf.

[7] Taking into account the complexity of this matter, to assist with the matter being dealt with more efficiently I granted the Respondent permission to be represented under s.596 by Mr Andrew Pollock of counsel.

[8] The following witnesses gave evidence on behalf of Hertz:

● Mr Tom Grove, former Regional Development Manager;

● Ms Emma Olsen, Regional Support Manager; and

● Ms Alicia Lucchesi, Senior Human Resources Business Partner.

Preliminary Matters

[9] Mr Tham filed his application twenty days after he was dismissed, within the time limit prescribed by s.394(2) of the Act.

[10] During his employment with Hertz, Mr Tham was covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 and his annual earnings were well below the high income threshold. Mr Tham’s period of employment with Hertz was longer than the minimum employment period. Mr Tham is protected from unfair dismissal under the Act.

[11] As at 25 August 2017, Hertz had approximately 69 employees, therefore the Small Business Fair Dismissal Code does not apply.

[12] No issue of redundancy arose in the proceeding and I find that the dismissal was not a case of genuine redundancy.

[13] Therefore the issue for me to consider is whether Mr Tham’s dismissal was harsh, unjust…

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 Charles Tham v Hertz Australia Pty Limited T/A Hertz

Details

AGLC: Charles Tham v Hertz Australia Pty Limited T/A Hertz [2018] FWC 3967
Case: [2018] FWC 3967
Decision Date: 4 JULY 2018

CaseChat Overview and Summary

Charles Tham sought relief for an unfair dismissal from his employment by Hertz Australia Pty Limited, trading as Hertz. The applicant claimed that his dismissal was unjust due to a series of events culminating in his termination. The Fair Work Commission was tasked with determining the validity of the dismissal and whether it was harsh, unjust, or unreasonable.

The central legal issues revolved around whether the dismissal was justified under the Fair Work Act 2009. Specifically, the Commission had to consider if the dismissal was a proportionate response to the applicant's conduct. The respondent argued that the dismissal was warranted due to the applicant's involvement in a fraudulent scheme. The applicant, on the other hand, contended that the dismissal was unfair and not in line with the proportionality principle.

The Commission meticulously reviewed the evidence and found that the applicant's involvement in the fraudulent scheme was significant. Despite acknowledging the presence of mitigating factors, such as the applicant's otherwise good record and his cooperation with the investigation, the Commission concluded that the dismissal was proportionate to the seriousness of the misconduct. The decision hinged on the respondent's need to maintain trust and integrity in its operations, which was compromised by the applicant's actions. The application for an unfair dismissal remedy was therefore dismissed.

The Fair Work Commission determined that no unfair dismissal had occurred and dismissed the application.

Orders