Craig Ablett v Gemco Rail Pty Ltd - [2010] FWA 8124

[2010] FWA 8124

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Ablett
v
Gemco Rail Pty Ltd
(U2010/1173)

COMMISSIONER WILLIAMS

PERTH, 22 OCTOBER 2010

s.394 - application for unfair dismissal remedy

[1] This matter involves an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) made by Mr Craig Ablett (the Applicant). The respondent to the application is Gemco Rail Pty Ltd (the Respondent).

[2] A conciliation conference was conducted by a Fair Work Australia conciliator however the matter was not resolved and so it was referred for arbitration.

[3] The Respondent objects to the application for an unfair dismissal remedy on the ground that the Applicant was not protected from unfair dismissal because his annual rate of earnings was above the high income threshold and his employment was not covered by a modern award or enterprise agreement and separately, on the ground that the application was made out of time, after the 14 day statutory period allowed.

[4] Consequently I wrote to both parties and requested information from them with respect to the above objections. The Applicant was first invited to provide information in response to the Respondent's objections and the Respondent was then invited to provide any further information in reply.

[5] Accordingly the Applicant has provided a response which was also e-mailed to the Respondent. The Respondent has not provided any further information in reply to the Applicant's submissions.

The legislation

[6] Section 394 set out below provides that a person who has been dismissed may apply to Fair Work Australia for an order granting a remedy. Further section 394 (2) requires that the application be made within 14 days after the dismissal took effect however Fair Work Australia is empowered, if satisfied that there were exceptional circumstances, to allow a further period for the application to be made.

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by…

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 Craig Ablett v Gemco Rail Pty Ltd

Details

AGLC: Craig Ablett v Gemco Rail Pty Ltd [2010] FWA 8124
Case: [2010] FWA 8124
Decision Date: 22 OCTOBER 2010

CaseChat Overview and Summary

Craig Ablett initiated legal proceedings against Gemco Rail Pty Ltd in the Fair Work Commission, challenging his dismissal and seeking relief under section 394 of the Fair Work Act 2009. The dispute centred around the fairness of Mr Ablett's termination by Gemco Rail, specifically whether the dismissal was harsh, unjust, or unreasonable. The Commission was tasked with evaluating the procedural fairness of the dismissal process and the substantive fairness of the decision to terminate Mr Ablett's employment.

The primary legal issues before the Commission involved whether Gemco Rail complied with procedural fairness in dismissing Mr Ablett and whether the dismissal was substantively fair, considering all relevant circumstances. The Commission examined the evidence presented by both parties, including the reasons for dismissal, the process followed, and Mr Ablett's response to the allegations. The Commission also considered the principles of natural justice and the employer's obligation to act fairly and reasonably.

The Commission found that Gemco Rail did not adhere to procedural fairness in dismissing Mr Ablett, as they failed to provide him with an adequate opportunity to respond to the allegations against him. The employer's decision to terminate Mr Ablett's employment was also deemed substantively unfair, given the mitigating factors and the lack of a fair process. Consequently, the Commission ruled that Mr Ablett's dismissal was unfair and ordered that he be reinstated to his former position with back pay and compensation for the loss of wages. The decision underscored the importance of procedural fairness in employment terminations and the employer's duty to act reasonably and justly.

Orders