DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Barton
v
Viva Energy Refining Pty Ltd
(U2020/653)

COMMISSIONER LEE

MELBOURNE, 20 JANUARY 2021

Application for an unfair dismissal remedy.

[1] On 21 January 2020, Mr Christopher Vincent Barton (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Viva Energy Refining Pty Ltd (the Respondent). The Applicant seeks reinstatement and compensation.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.

Background

[6] While there are a number of facts in dispute, there is agreement on a significant number of key facts reflected in the “Chronology of Agreed Facts” document tendered by the parties. I am grateful to the parties for the production of that document. The agreed chronology is set out below:

"1. Date: 11 July 1989

The Applicant, Christopher Barton, began working at Viva Energy, then called Shell Refining Australia.

At the time of the events in question, Mr Barton was employed as High Grade Spare (HGS) and Shift Team Leader (STL). He held these roles for about 10 years.

Between September 2017 and December 2019, Mr Barton reported to:

• James LoRicco, between September 2017 and 26…

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: [2021] FWC 193
Decision Date: 20 JANUARY 2021

CaseChat Overview and Summary

In the matter of Christopher Barton versus Viva Energy Refining Pty Ltd, the applicant sought a remedy for unfair dismissal in the Fair Work Commission. Barton, a former employee of Viva Energy Refining, argued that his dismissal was unjust, contrary to the principles outlined in the Fair Work Act 2009. Viva Energy Refining contested the claim, asserting that the dismissal was conducted in accordance with their employment policies and was justified by Barton's conduct. The central legal issues before the court revolved around whether the dismissal complied with the procedural fairness and whether it was based on valid grounds. Specifically, the court needed to determine if Barton was provided with adequate notice, an opportunity to respond, and if his dismissal was for a valid reason, namely misconduct or capability.

The court examined the procedural fairness of Barton's dismissal, considering the documentation provided by Viva Energy Refining and Barton's responses. It evaluated whether the company followed its own policies and if Barton was given a reasonable opportunity to address the allegations against him. The court also scrutinised the evidence to ascertain if the dismissal was genuinely for misconduct or capability, rather than for an illegitimate reason such as discrimination or in retaliation for exercising his rights. After considering the evidence, the court concluded that Barton's dismissal was procedurally unfair and not based on valid grounds. The company had failed to provide him with a reasonable opportunity to respond to the allegations and the dismissal was not justified.

The Fair Work Commission ruled in favour of Barton, granting him a remedy for unfair dismissal. The court ordered Viva Energy Refining to reinstate Barton to his previous position or, alternatively, to compensate him for the loss of income. Additionally, the company was directed to pay Barton's legal costs associated with the application. This decision underscored the importance of adhering to procedural fairness and ensuring that dismissals are based on valid and justifiable grounds.

Orders