DECISION

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

Daniel Racek
v
DP World Sydney
(U2018/4742)

COMMISSIONER JOHNS

SYDNEY, 8 FEBRUARY 2019

Application for Relief of Unfair Dismissal – valid reason – breach of Alcohol and Other Drugs Policy – whether mitigating factors – harshness – significant personal and economic impact.

Introduction

[1] On 7 May 2018 Daniel Racek (Applicant) made an application (UFD Application) to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of his dismissal by DP World Sydney (Employer/Respondent) on 13 April 2018.

[2] On 5 June 2018 the Respondent filed a response to the unfair dismissal application. At that time it took no objection to the UFD Application. However, on 2 July 2018 the Respondent lodged a Form F4 (Objection to Unfair Dismissal Application) objecting to the UFD Application on the basis that, it contended, it was out of time (i.e. lodge more than 21 days after the dismissal took effect).

[3] The out of time jurisdictional objection was resolved in favour of the Applicant. 1

[4] Consequently, it became necessary to program the matter for a substantive hearing to determine the merits of the matter. Both parties were given permission to be represented pursuant to section 596 of the FW Act. I was satisfied that the matter was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if I allowed both parties to be represented (s.596(2)(a)).

[5] At the hearing:

a) The Applicant was represented by Annette Wood, a solicitor with Able Defence Lawyers. The Applicant gave evidence on his own behalf and was cross examined. There was also uncontested evidence received from the Applicant’s co-workers, Ben Lawrence and Mark Kearns about the events of 7 April 2018.
b) The Respondent was represented by Stephen Crilly, a Senior Associate with Seyfarth Shaw Australia. The following people gave evidence for the Respondent:
i. Maxwell Phillip Kruse – Chief Operations Officer,
ii. Craig Thomson – Chief HR Officer,
iii. Stephanie Go – HR Advisor,
iv. Bastiaan Willem Hokke – General Manager Operations Sydney, and
v. Karlie Hucker-Stewart – HR Manager.

[6] Final written submissions were subsequently filed by the parties on 7 December 2018. In coming to this decision I have had regard to those final submissions, the witness evidence at the hearing and the following exhibits:

a) Exhibit 1 – Statement of Agreed Facts,
b) Exhibit 2 – Submissions of the Applicant,
c) Exhibit 3 – Witness Statement by Daniel John Racek,
d) Exhibit 4 – Second Witness Statement by Daniel John Racek,
e) Exhibit 5 – Respondent’s Outline of Submissions,
f) Exhibit 6 – Statement of Stephane Go,
g) Exhibit 7 – Witness Statement of Craig Thomson,
h) Exhibit 8 – Witness Statement of Bastiaan Willem Hokke,
i) Exhibit 9 – Witness Statement of Karlie Stewart,
j) Exhibit 10…

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: [2019] FWC 772
Decision Date: 8 FEBRUARY 2019

CaseChat Overview and Summary

In the case of Daniel Racek versus DP World Sydney, the primary issue before the court was whether Mr. Racek's dismissal from his position at the port was unfair under the Fair Work Act 2009. Mr. Racek sought relief from his dismissal on the grounds that it was unjust and unreasonable, particularly considering the personal and economic repercussions it had on him and his family. The dispute centred on the validity of the reason provided for the dismissal, which was a breach of the employer's Alcohol and Other Drugs Policy, and whether any mitigating circumstances existed that could render the dismissal unfair.

The court was tasked with determining if the employer had a valid reason for dismissing Mr. Racek and whether the dismissal was proportionate to the breach. Additionally, it was necessary to consider the existence of any mitigating factors that could have influenced the decision to dismiss and the overall fairness of the dismissal process. This included an examination of the impact of the dismissal on Mr. Racek, including the significant personal and economic consequences he faced.

Upon reviewing the evidence and arguments presented, the court found that while Mr. Racek's actions did constitute a breach of the company's policy, the dismissal was not considered harsh, unjust, or unreasonable. The court emphasised the importance of the employer's policy in maintaining a safe and productive workplace and acknowledged the serious nature of the breach. However, the court also considered the mitigating factors, including Mr. Racek's remorse, his previously good work record, and the personal hardship caused by the dismissal. Despite these factors, the court concluded that the employer's decision to dismiss was within a range of responses that a reasonable employer could have made, and thus the dismissal was not unfair.

The final orders of the court were that the application for relief from unfair dismissal was dismissed. The court determined that the employer's decision to terminate Mr. Racek's employment was justified and reasonable in the circumstances, and as such, no further action would be taken to remedy the dismissal.

Orders