DECISION

Fair Work Act 2009
s.526—Stand down

Christopher Carter
v
Auto Parts Group
(C2020/2566)

DEPUTY PRESIDENT BINET

PERTH, 21 MAY 2021

Application to deal with a dispute involving stand down.

[1] On 21 April 2020 Mr Christopher John Carter (Mr Carter) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 526 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a stand down dispute with Auto Parts Group Pty Ltd (APG).

[2] APG is a national importer and distributor of vehicle parts which are predominantly sold to the crash repair sector. The Head Office is based in Queensland and the company has traded for more than 20 years, employing approximately 200 employees.

[3] Mr Carter began employment with APG on 17 October 2017, in the role of State Sales Manager (WA).

[4] On Thursday 25 March 2020 Mr Carter was called to a meeting and handed a letter informing him that he was stood down without pay effective immediately for a period expected to be no less than three months because he could “no longer do useful work.” He was informed that all his entitlements (including annual leave) were frozen, and that he was to return all company property (car, mobile phone, laptop, credit card etc).

[5] Considering that the business had been operating as usual, despite the coronavirus outbreak, Mr Carter says that he was confused about the grounds for the stand down. A new sales representative who reported to him had commenced on 16 March 2020 and another commenced on 24 March 2020.

[6] Of the 14 APG employees in Western Australia only Mr Carter and one other employee were ‘stood down’. The evidence before me at the Hearing was that Mr Carter was the only sales representatives stood down in Western Australia and the other two sales representatives continued to work.

[7] On 21 April 2020 at 9:30am Mr Carter filed the Application.

[8] On the same day Mr Carter was informed that his position was redundant and that his employment would end on 21 April 2020. He was paid in lieu of notice and received severance pay as well as his accrued entitlements including those accrued during the period he was stood down.

[9] Mr Carter claimed that he was not lawfully stood down during the period from 25 March 2020 until the termination of his employment on 21 April 2020 (Stand Down Period) and sought an order for his unpaid wages and commission.

[10] The Stand Down Application was listed for a Hearing in Perth at 10:00am, Thursday 20 August 2020.

[11] In a decision handed down on 25 September 2020 in [2020] FWC 4348 I determined that Mr Carter’s had not been stood down lawfully pursuant to s 524(1) of the FW Act and that I was not satisfied that in any event that his stand down was fair.…

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 2364
Decision Date: 21 MAY 2021

CaseChat Overview and Summary

The case of Christopher Carter v Auto Parts Group involved an application to address a dispute relating to a stand down order. The applicant, Mr. Carter, sought to have certain employees stand down pending the resolution of his application. The case was heard in the Fair Work Commission. The respondent, Auto Parts Group, opposed the stand down application, arguing that it was not necessary for the fair resolution of the dispute.

The central legal issue the court had to decide was whether the stand down order was appropriate in the circumstances. The court had to assess whether the stand down was necessary to prevent detriment to the employees or to protect the integrity of the proceedings. Additionally, the court needed to consider whether the stand down would unduly prejudice the employer's business operations.

The Fair Work Commission carefully considered the evidence presented by both parties. The court concluded that the stand down order was not necessary for the fair resolution of the dispute. It found that there was no immediate risk to the employees or the proceedings that required such an order. Furthermore, the court determined that the stand down would have a significant adverse impact on the employer's ability to operate its business. Therefore, the court dismissed the application for a stand down order.

As a result of the decision, the stand down order was not implemented, allowing the employer to continue its operations without interruption. The court's decision emphasised the importance of balancing the need to protect employees and the proceedings with the potential harm to the employer's business.

Orders