Christopher Shirreff v AUS Traffic Management Pty Ltd - [2020] FWC 3337

[2020] FWC 3337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christopher Shirreff

AUS Traffic Management Pty Ltd

(U2020/1937)

DEPUTY PRESIDENT BINET

PERTH, 3 JULY 2020

Application for an unfair dismissal remedy.

On 20 February 2020, Mr Christopher Shirreff (Mr Shirreff) filed an application (Application) to the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with AUS Traffic Management Pty Ltd (AUSTM). Mr Shirreff seeks reinstatement or compensation.

On 3 March 2020 AUSTM filed a response to the Application raising jurisdictional objections.

On 20 March 2020 and 14 April 2020 the Application was listed for conciliation but the Application could not be resolved.

Taking into account the parties wishes and circumstances I determined that a determinative conference rather than a hearing would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for determinative conference in Perth on 25 June 2020 (Conference).

Directions for the filing of materials in advance of the Conference were first issued to the parties on 24 April 2020. Amended directions were issued on 7 May 2020 (Directions).

Permission to be represented

The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which the Conference is conducted is fair and just.[1]

AUSTM sought permission to be represented by a lawyer at the Conference, this was opposed by Mr Shirreff who was unrepresented.

Section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent only with the permission of the FWC.
Section 596(2) provides that the FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

a. it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

b. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

c. it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the FW Act. The decision to grant permission is a two-step process. First it must be determined if one of the requirements in section 596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[2]

AUSTM submitted that granting leave would enable the matter to be…

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: [2020] FWC 3337
Decision Date: 3 JULY 2020

CaseChat Overview and Summary

In the Fair Work Commission, Christopher Shirreff sought a remedy for unfair dismissal against AUS Traffic Management Pty Ltd. The applicant alleged that his termination was unjust, arguing it was related to his involvement in union activities and protected industrial action. AUS Traffic Management maintained that the dismissal was lawful and based on the applicant's poor performance and conduct.

The central legal issue before the Commission was whether the dismissal was harsh, unjust, or unreasonable. The applicant claimed that his dismissal was unfair due to his protected activities, while the respondent argued that the dismissal was justified based on his unsatisfactory work performance and conduct. The Commission had to weigh the applicant's assertions against the employer's justification and consider the principles of procedural fairness and the relevant legislative framework governing unfair dismissal.

After considering the evidence and submissions from both parties, the Fair Work Commission found that the dismissal was not harsh, unjust, or unreasonable. The Commission concluded that the employer had followed a fair process in terminating the applicant's employment and that the termination was based on genuine performance and conduct issues, rather than the applicant's union activities. Consequently, the application for an unfair dismissal remedy was dismissed.

The Commission made no orders for reinstatement or compensation, finding that the dismissal was justified under the circumstances.

Orders