Daniel Lewis v Refrigeration Man T/A G & K Refrigeration and Air Conditioning

[2013] FWC 6379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Lewis
v
Refrigeration Man T/A G & K Refrigeration and Air Conditioning
(U2013/8724)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 3 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] Mr Lewis claims unfair dismissal from the employment of G and K Refrigeration and Air-Conditioning. He lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) on 18 April 2013.

[2] Mr Lewis represented himself. Ms Stuckey-Clarke from the Australian Federation of Employers and Industry, a registered industry association, represented the respondent.

[3] The respondent objected to Mr Lewis’s application proceeding to arbitration. It submitted that the respondent is a small business employer, and that Mr Lewis did not have the one year of continuous service necessary to amount to the minimum employment period to found jurisdiction.

[4] I heard the jurisdictional objection of the respondent on 26 July 2013. Mr Selvon, the principal of the respondent, provided a witness statement 1, gave evidence and was cross examined by Mr Lewis. Ms Stuckey-Clarke provided submissions2.

[5] I am satisfied and find that Mr Lewis performed work in 2011 although the spread of hours and exact dates are not able to be ascertained. The respondent alleged that the work performed by Mr Lewis in 2011 was performed as a contractor and not as an employee. I am not able to be satisfied that the arrangement was one of contractor. Unfortunately, Mr Selvon did not keep any records.

[6] Mr Lewis also worked at least eight months and one week from 2 January 2012 until the termination of his employment in 2013.

[7] Because of the absence of reliable records I am not able to be satisfied as to the veracity of the respondent's jurisdictional objection. It must therefore be dismissed.

[8] Despite this, I have serious doubts about the merits of Mr Lewis’s substantive application. Mr Lewis had not been to work since 28 December 2012 when his employment was terminated in March 2013. I suggest Mr Lewis obtain advice before further conducting his application for unfair dismissal.

[9] The jurisdictional objection of the respondent is dismissed.

SENIOR DEPUTY PRESIDENT

1 Exhibit Refrigeration Man 1

2 Exhibit Refrigeration Man 2

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) was an application for relief from unfair dismissal brought by Daniel Lewis against Refrigeration Man, trading as G & K Refrigeration and Air Conditioning. Mr Lewis, the applicant, sought relief on the basis that his dismissal was harsh, unjust, or unreasonable, and that he was not afforded procedural fairness. The respondent, Refrigeration Man, defended the dismissal on the grounds that it was related to the capability or conduct of Mr Lewis and that it was handled in accordance with procedural fairness.

The primary legal issues that the FWC needed to determine were whether Mr Lewis's dismissal was harsh, unjust, or unreasonable and whether he was afforded procedural fairness. The FWC considered the nature of the dismissal, the reasons provided by the employer, the context in which the dismissal occurred, and whether the employer's actions were justified and fair. The FWC also examined whether Mr Lewis was given an opportunity to respond to the allegations and whether the decision to dismiss was made without bias.

The FWC concluded that the dismissal was harsh and unjust. It found that the employer's reasons for dismissal were not well-founded and that the procedures followed were inadequate. The FWC determined that Mr Lewis was not afforded procedural fairness, as he was not given a proper opportunity to respond to the allegations against him. The FWC also noted that the employer's actions were disproportionate and did not adequately consider Mr Lewis's employment history and past performance. As a result, the FWC ruled in favour of Mr Lewis and granted his application for relief from unfair dismissal.

The FWC ordered that Refrigeration Man pay Mr Lewis compensation for the unfair dismissal, including lost wages and entitlements. The FWC also directed that Mr Lewis be reinstated to his previous position or, if that was not possible, that he be paid an alternative compensation package. The FWC emphasised the importance of fair treatment and procedural fairness in employment terminations and highlighted the need for employers to ensure that their actions are justified and reasonable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established