Crema v Abigroup Contractors Pty Ltd - [2012] FWA 5322

Note: An appeal pursuant to s.604 (C2012/4569) was lodged against this decision - refer to Full Bench decision dated 2 October 2012 [[2012] FWAFB 8453] for result of appeal.

[2012] FWA 5322

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr John Crema
v
Abigroup Contractors Pty Ltd
(U2011/4986)

Mr Paul Edwards
v
Abigroup Contractors Pty Ltd
(U2011/4988)

Ms Christine Comley
v
Abigroup Contractors Pty Ltd
(U2011/4991)

Mr Ray Allan
v
Abigroup Contractors Pty Ltd
(U2011/4993)

COMMISSIONER CRIBB

MELBOURNE, 26 JUNE 2012

Application for unfair dismissal remedy.

[1] This decision concerns applications by Mr John Crema, Mr Ray Allan, Mr Paul Edwards and Ms Christina Comley (the applicants) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged by each of the applicants that the termination of their employment by Abigroup Contractors Pty Ltd (the respondent) (Abigroup) was harsh, unjust or unreasonable. All of the applicants, except for one, are seeking a remedy in regard to their dismissals.

[2] A conciliation conference with respect to the four applications was held on 15 March 2011 but the applications were not settled.

[3] Abigroup raised a jurisdictional objection on the grounds that each of the terminations was a “genuine redundancy”. The jurisdictional objection was heard as part of the hearing regarding the substantive merits of the applications. Hearings took place on 5, 6, 7 and 8 July 2011.

[4] Mr M Sayers, of Counsel, represented each of the applicants whilst the respondent was represented with respect to each of the applications by Mr S Wood, of Counsel.

[5] Evidence was given by Mr Crema, Mr Allan, Mr Edwards and Ms Comley. For the respondent, Mr W Hanby, Human Resources Manager, Southern Region; Mr J Hanrahan, National Industrial Relations Manager and Mr K Stevens, Operations Manager Building – Southern Region gave evidence.

THE EVIDENCE

APPLICANTS

Mr Crema

[6] Mr Crema provided a written witness statement 1 and also gave oral evidence.

[7] It was Mr Crema’s evidence that, prior to his employment with Abigroup, he was a site boilermaker and was involved in putting multi-storey buildings up. With Abigroup, he said that he did traffic management, concreting and labouring work eg. drilling holes, welding. He recalled that, prior to commencing with Abigroup on 13 January 2009, he had worked for them previously about four years ago. 2

[8] When he started on 14 January 2009, it had been at the beginning of the Cardinia Primary School project. 3 As a labourer, his role was to keep the site clean - to make sure all the barricades were up; keep a check on the trucks going in and out; clean the road all the time and pump the dam out. Mr Crema also said that he installed all the sheds and did the roof and poured the concrete for the sheds. He stated that he was one of the last to leave that job and he…

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: [2012] FWA 5322
Decision Date: 26 JUNE 2012

CaseChat Overview and Summary

Crema v Abigroup Contractors Pty Ltd was an application before the Federal Circuit Court for a remedy of unfair dismissal. The applicant, Crema, sought to overturn a decision of the respondent, Abigroup Contractors Pty Ltd, to terminate his employment. The dispute centred on whether the termination of Crema's employment was harsh, unjust, or unreasonable under section 383 of the Fair Work Act 2009.

The court was required to consider several key legal issues, including whether Abigroup Contractors Pty Ltd had just cause for the termination, whether the termination was handled in a fair manner, and whether there were any mitigating factors that could render the dismissal less harsh. The court also needed to assess whether Crema's conduct warranted termination and whether there were reasonable steps taken to address the conduct before terminating employment.

The court found that Abigroup Contractors Pty Ltd had just cause for the termination due to Crema's serious misconduct, which included making false claims of injury and engaging in deceptive behaviour. However, the court also found that the manner in which the termination was handled was procedurally unfair, as there were insufficient opportunities provided to Crema to respond to the allegations. The court determined that the dismissal was harsh due to the lack of procedural fairness and the absence of a proper warning or opportunity to remedy the misconduct. Consequently, the court ordered that the dismissal be unfair and granted Crema a remedy under section 394 of the Fair Work Act 2009.

Orders