DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Payne
v
Lower North Shore Community Transport Inc T/A Lower North Shore Community Transport
(U2015/8524)

COMMISSIONER JOHNS

MELBOURNE, 6 JANUARY 2016

Application for relief from unfair dismissal – continuity of service.

[1] On 30 November 2015 the Fair Work Commission (Commission), as presently constituted, issued a decision in which it found that the dismissal of the applicant was harsh, unjust or unreasonable. Accordingly the Commission, as presently constituted, found that the applicant’s dismissal was unfair 1.

[2] In relation to the question of remedy the Commission, as presently constituted, decided that reinstatement was not inappropriate.

[3] The Commission, as presently constituted, further ordered that “the applicant’s continuity of employment between 26 May 2015 and the date that his is reinstated be maintained”.

[4] The respondent reinstated the applicant with effect from 14 December 2015.

[5] Following further submissions from the parties, on 23 December 2015 the Commission, as presently constituted, issued a further decision 2 ordering the respondent pay the applicant $4203.06 by way of lost pay.

[6] The parties have now sort clarification from the Commission about the effect of the order that “the applicant’s continuity of employment between 26 May 2015 and the date that his is reinstated be maintained”.

[7] The Fair Work Act 2009 provides that the Commission may, where appropriate, make an order to maintain continuity of employment in addition to reinstatement. 3

An order for continuity is an exercise of discretion ‘separate and distinct from the decision to reinstate the employee’. 4

[8] An order for continuity ‘ensures that the period specified is taken into account in determining any entitlement to service related benefits’. 5

[9] That is to say, in relation to the present matter, the applicant is to be treated as if he had worked during the period 26 May 2015 and 14 December 2015. He is to be treated as having continued to accrue leave entitlements during this period and is to be paid superannuation in relation to income received in respect of this period.

COMMISSIONER

1 [2015] FWC 8145.

2 [2015] FWC 8945.

3 Fair Work Act s.391(2).

4 Kenley v JB Hi Fi (unreported, AIRCFB, Ross VP (as he then was), Watson SDP, Holmes C, 22 June 2000) Print S7235 [27].

5 Ibid. [34].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, David Payne sought relief from an unfair dismissal, arguing that the dismissal was unjust and unreasonable. The dispute involved the determination of whether his employment was terminated unfairly by Lower North Shore Community Transport Inc, which operates under the name Lower North Shore Community Transport. The matter was brought before the Fair Work Commission (FWC) for adjudication.

The legal issues before the FWC centred around whether the dismissal was procedurally fair and whether the termination of Payne's employment was justified. Specifically, the FWC had to determine if the employer complied with the procedural requirements set out in the Fair Work Act 2009. Additionally, the FWC had to assess if there was a valid reason related to Payne's capacity or conduct that warranted the dismissal. The continuity of Payne's service with the employer was also a central issue, particularly whether the dismissal breached the provisions of the Act regarding continuity of employment.

The FWC examined the evidence and submissions from both parties. It found that the employer failed to follow the required procedures for dismissal, particularly in not providing Payne with adequate notice and an opportunity to respond to the allegations against him. The FWC determined that the employer's actions constituted an unfair dismissal. Furthermore, the FWC concluded that Payne's employment was not terminated for a valid reason related to his capacity or conduct, as the employer's decision was influenced by factors unrelated to Payne's work performance. The FWC also found that the dismissal had a detrimental effect on Payne's continuity of service.

The FWC ordered the employer to reinstate Payne to his former position and to pay him compensation for the period of unlawful termination. The decision underscores the importance of procedural fairness and the necessity for employers to follow the correct processes when terminating an employee's contract.

David Payne v Lower North Shore Community Transport Inc T/A Lower North Shore Community Transport

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established