DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Mulroney
v
Alfred James & Sons Pty Ltd T/A Alfred James Funeral Homes
(U2015/8433)

DEPUTY PRESIDENT GOSTENCNIK

ADELAIDE, 9 SEPTEMBER 2015

Application for relief from unfair dismissal; swearing and threatening behaviour directed at supervisor; whether valid reason; conduct engaged in was a valid reason; procedure adopted by employer was appropriate and fair; previous warnings were justified; consideration of after dismissal conduct; dismissal was not unfair; application dismissed.

Introduction

[1] Christopher John Mulroney (the Applicant) was dismissed from his employment as a Funeral Consultant with Alfred James & Sons Pty Ltd (the Respondent) on misconduct grounds related to an incident on 17 May 2015 involving another employee, Ms Diane Sloan. The dismissal took effect on 27 May 2015. 1 On the termination of the employment the Applicant received a payment of three weeks’ pay lieu of notice, together with a payment for outstanding wages and accrued entitlements.2 The Applicant had been employed by the Respondent since 26 September 2011.3

[2] On 12 June 2015, the Applicant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Turning first to deal with the initial matters which must be decided before the merits of an application are considered. 4 It is not in dispute, and I find that:

The application was made within the time prescribed in s.394(2);

The Applicant was, at the date of his dismissal, protected from unfair dismissal within the meaning of s.382 in that the Applicant was an employee of the Respondent who had completed a period of employment with the Respondent which was greater than the minimum period of employment as set out in s.383(a); and

the Funeral Industry Award 2010 (the Award) covered the Applicant in his employment with the Respondent;

The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and

The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act. 5

[3] I have decided that the Applicant’s dismissal was not unfair and that his application should be dismissed. These are my reasons for that conclusion.

Factual background, context and findings

[4] The Respondent conducts a funeral business providing funeral planning and related services to families of deceased persons. Mr Philip Murray is employed by the Respondent as its Funeral Manager. 6 The Applicant was employed as a Funeral Consultant. Ms Sloan is employed by the Respondent as a Funeral Co-ordinator and was the Applicant’s supervisor on 17 May 2015.7

[5] The Respondent has promulgated a number of workplace policies including a Code of Conduct 8 and a Workplace Harassment and Bullying policy.9 The Applicant acknowledged that he had read and clearly understood these policies through an instrument signed by him on 3 May 2012.10

[6] The incident which ultimately resulted in the termination…

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

AGLC: Christopher Mulroney v Alfred James & Sons Pty Ltd T/A Alfred James Funeral Homes [2015] FWC 6215
Case: [2015] FWC 6215
Decision Date: 9 SEPTEMBER 2015

CaseChat Overview and Summary

In the matter of Christopher Mulroney v Alfred James & Sons Pty Ltd T/A Alfred James Funeral Homes, the Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal of Mr Mulroney was unfair. Mr Mulroney, an employee of Alfred James & Sons Pty Ltd, sought relief from his dismissal which was based on his alleged misconduct, specifically swearing and threatening behaviour directed at his supervisor. The central dispute revolved around whether the employer had just cause for dismissal and whether the procedures followed were fair.

The primary legal issues before the court were whether the conduct engaged in by Mr Mulroney constituted a valid reason for his dismissal and whether the employer's procedures in handling the dismissal were appropriate and fair. Additionally, the court examined the fairness of the dismissal in light of previous warnings issued to Mr Mulroney and his conduct post-dismissal. The court needed to weigh the severity of the misconduct against the employer's right to manage its workforce and the procedural fairness in the dismissal process.

The court found that the employer had valid grounds for dismissal, as Mr Mulroney's conduct was serious and warranted disciplinary action. The employer's decision to dismiss him was deemed proportionate to the misconduct. Furthermore, the court noted that the employer had followed a fair procedure in issuing warnings and ultimately dismissing Mr Mulroney. The court considered the employer's previous warnings justified and found no procedural flaws in the dismissal process. Given the circumstances, the court concluded that the dismissal was fair and appropriate, dismissing Mr Mulroney's application for relief from unfair dismissal.

The court's final orders were that Mr Mulroney's application for relief from unfair dismissal was dismissed, and no orders for compensation or reinstatement were made. The court found that the employer had acted reasonably and fairly in dismissing Mr Mulroney for his conduct.

Orders