DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Keogh
v
French Par-Bake
(U2016/11839)

COMMISSIONER CRIBB

MELBOURNE, 26 MAY 2017

Application for relief from unfair dismissal.

[1] Mr David Keogh (the Applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) in relation to his dismissal by French Par-Bake (the Respondent, the company).

[2] The company made a jurisdictional objection on 29 September 2016 on the grounds that there was no termination at the initiative of the employer.

[3] The jurisdictional objection was heard together with the merits of the substantive application on 20 January 2017. Further material was subsequently received from Mr Keogh, at the request of the Commission, regarding monies earned following his dismissal. It was agreed that the Commission would deal with the Respondent’s jurisdictional objection in the first instance. Depending on the outcome of that, the Commission would then deal with whether Mr Keogh’s dismissal was unfair, if required.

[4] Mr Keogh gave evidence as did Mr Mark Pato, Director and shareholder of the company. Mr Simon Pato, Warehouse Manager with the company swore that his written statement was true and correct but was not required for cross examination. Mr Keogh was represented by Mr M White, of Counsel whilst the Respondent was represented by Mr G Christodoulou, solicitor.

JURISDICTIONAL OBJECTION

Legislative framework

[5] One of the prerequisites, under section 385 of the Act, for a person to have been unfairly dismissed is that the person has been dismissed (section 38(a)). Section 386(1) sets out the meaning of dismissed as follows:

“(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[6] Both parties referred to the principles set out in the decision in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 1 (Mohazab) in relation to what constituted a termination at the initiative of the employer. A termination is at the employer’s initiative when:

the employer’s action ‘directly and consequentially’ results in the termination of employment, and

had the employer not taken this action, the employee would have remained employed. 2

[7] The Commission respectfully adopts the approach taken in Mohazab.

Submissions

Respondent

[8] The company submitted that Mr Keogh’s employment was not terminated at the initiative of the employer nor was Mr Keogh forced to resign because of conduct or a course of conduct engaged in by the employer. 3 The company argued that, on the basis of the principles set out in Mohazab, there must be action by the employer that either intends to bring the relationship to an end or has that probable result. It was stated that it was not sufficient to demonstrate that the employee did…

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: [2017] FWC 2865
Decision Date: 26 MAY 2017

CaseChat Overview and Summary

David Keogh has applied to the Federal Circuit and Family Court for relief from an unfair dismissal from his employer, French Par-Bake. The dispute centres on Keogh’s termination of employment and whether it was justified under the Fair Work Act 2009. Keogh argues that his dismissal was not fair, while French Par-Bake contends that the termination was justified and aligned with the legal standards for termination.

The primary legal issue before the court was whether Keogh's dismissal was unfair under the Fair Work Act. The court examined the validity of the employer's reason for dismissal, the procedural fairness in the termination process, and whether there was a genuine redundancy situation. Keogh argued that the dismissal was unjust, citing lack of procedural fairness and the absence of a genuine redundancy. French Par-Bake maintained that the dismissal was justified, as it followed proper procedures and was due to a genuine redundancy.

In its decision, the court found that the employer had followed the required procedures for dismissal, including providing Keogh with a valid reason and an opportunity to respond. The court also determined that the employer had a genuine need to downsize, leading to the redundancy. Despite Keogh's argument regarding procedural fairness, the court concluded that the dismissal was not unfair as it met the legal requirements under the Fair Work Act. The employer's reasons for dismissal and the process followed were deemed appropriate and justified.

The court dismissed Keogh's application for relief from unfair dismissal. The decision was based on the finding that French Par-Bake had followed the necessary legal procedures and that the dismissal was justified due to genuine redundancy.

Orders