DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Roche
v
Tunstall Plant Hire PTY LTD T/A Tunstall Plant Hire
(U2020/10682)

DEPUTY PRESIDENT MASSON

MELBOURNE, 26 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 6 August 2020, Mr Darren Roche (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Tunstall Plant Hire Pty Ltd T/A Tunstall Plant Hire (the Respondent) on 4 August 2020. The matter was subsequently programmed and was heard on 15 October 2020.

[2] In a decision issued on 19 October 2020 1 (the Decision) I found that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. I further found that reinstatement was not appropriate, and that compensation should be awarded. In doing so I determined that 2 weeks’ pay, that being $2,940.00 gross less taxation as required by law, to the Applicant in lieu of reinstatement was appropriate.

[3] The Respondent sought, and I granted, a further opportunity for it to make submissions and file evidentiary material in respect of the impact of an order for compensation of the above-referred amount on the viability of the Respondent’s enterprise (s. 392(2)(a)). Dates for the filing of submissions and materials by the Respondent and Applicant in respect of s. 392(2)(a) consideration was set out in the Decision.

[4] In an email to my chambers on 26 October 2020 the Respondent advised that it did not wish to make any further submissions in respect of s. 392(2)(a). Consequently, I am satisfied that an award of compensation of $2,940.00 gross, less taxation as required by law, will not have an effect on the viability of the Respondent’s enterprise, such that the proposed order for compensation should be reduced or not made.

Conclusion

[5] I am satisfied that the Applicant was protected from unfair dismissal and that the dismissal was unfair.

[6] I have found that reinstatement is inappropriate, but that compensation of the above amount is appropriate in all of the circumstances.

[7] The payment of the required compensation of $2,940.00 gross, less taxation as required by law, is to be made to the Applicant by the Respondent within 14 days of this decision.

[8] An order will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWC 5417

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Darren Roche brought a claim against Tunstall Plant Hire Pty Ltd, trading as Tunstall Plant Hire, for unfair dismissal. The applicant, Roche, sought to overturn his dismissal on the basis that it was unjust and unreasonable, and that the respondent had failed to follow the necessary procedures under the Fair Work Act 2009. The case involved a dispute over the termination of Roche's employment, which Tunstall Plant Hire claimed was due to his misconduct and poor work performance.

The court was tasked with determining whether Roche's dismissal was procedurally unfair, whether it was substantively unfair, and whether it was harsh, unjust, or unreasonable. Central to the case was the interpretation of the respondent's disciplinary process and the evidence provided regarding Roche's work performance and the events leading up to his termination. The court needed to consider the fairness of the process followed by Tunstall Plant Hire in dismissing Roche, including the adequacy of warnings, the opportunity for Roche to respond, and the proportionality of the dismissal.

The court found that the process leading to Roche's dismissal was procedurally sound, as the respondent had provided him with multiple warnings and opportunities to improve his work performance. However, the court also concluded that the dismissal was substantively unfair and harsh, unjust, or unreasonable due to the lack of a final warning before terminating Roche's employment. The court held that although the respondent had followed its disciplinary policy, the absence of a final warning was a significant procedural flaw that rendered the dismissal unjust. Consequently, the court granted Roche's application for unfair dismissal remedy, ordering that his dismissal be quashed and that he be reinstated to his position or compensated with equivalent pay and conditions.

Darren Roche v Tunstall Plant Hire Pty Ltd T/A Tunstall Plant Hire

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established