David Pomare v Omnicare Alliance Ltd - [2024] FWC 2709

[2024] FWC 2709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

David Pomare
v

Omnicare Alliance Ltd

(U2023/13153)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 27 SEPTEMBER 2024

Application for relief from unfair dismissal – dismissal was not harsh, unjust and unreasonable

On 28 December 2023, Mr David Pomare made an application to the Fair Work Commission (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 Omnicare Alliance Ltd (Omnicare).

Omnicare provides services to people with disability on the mid-north coast of New South Wales. Mr Pomare was employed by Omnicare on a permanent basis from 1 July 2018 until he was dismissed on 11 December 2023.

In summary, I have found that there was no valid reason for the dismissal, but that Mr Pomare did not establish that the dismissal was unfair. Based on these findings, I have determined that Mr Pomare’s dismissal was not harsh, unjust and unreasonable.

Directions and determinative conference

The matter was listed for a case management conference before Deputy President Saunders on 22 February 2024 and directions were made for the filing and serving of evidence and submissions. The matter was listed for determinative conference/hearing via Microsoft Teams on 18 and 19 April 2024. On 18 March 2024, Mr Pomare filed material and on 5 April 2024, Omnicare filed material.

The matter was reallocated to me. At the commencement of the determinative conference/hearing on 18 April 2024, the parties agreed to participate in conciliation and the matter was settled in principle. On 1 May 2024, Omnicare advised the Commission that Mr Pomare had rejected the settlement proposal. The matter was then listed for a case management conference before me on 10 May 2024. After hearing from the parties, the matter was set down for a determinative conference on 24 May 2024. Mr Pomare and Omnicare each represented themselves at the conference.

Conduct of the Proceedings

The way in which the proceedings were conducted by the parties was unsatisfactory and did not assist the Commission in its determination of the matter. When Directions were issued on 22 February 2024, the parties were referred to a section of the Commission’s website which provides information about preparing for unfair dismissal hearings and conferences. The website includes templates that parties can use to present witness statements, document lists and outlines of argument.

It is clear from the material filed that neither party viewed the website or the templates. Mr Pomare provided a letter which generally denied any wrongdoing, and a character reference from people who I describe in this Decision as ‘Mr and Mrs F’. Mr Pomare did not file any material which explained his response to each of the allegations which led to his dismissal. Mr Pomare did not engage with any of the criteria in s 387 of the FW Act which the Commission is required to consider when determining whether a dismissal is unfair.…

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: [2024] FWC 2709
Decision Date: 27 SEPTEMBER 2024

CaseChat Overview and Summary

- Parties, nature of dispute, and court:
David Pomare filed an application for unfair dismissal remedy against Omnicare Alliance Ltd, alleging that he was unfairly dismissed from his employment. The matter was heard by the Fair Work Commission (FWC) under the Fair Work Act 2009 (FW Act), specifically section 394. The Deputy President of the FWC, Wright, presided over the case.

- Legal issues:
The primary legal issues to be decided were whether Mr Pomare was protected from unfair dismissal at the time of his dismissal, whether there was a valid reason for the dismissal, and whether the dismissal was harsh, unjust, or unreasonable. Additionally, the court had to consider whether Mr Pomare had been given an opportunity to respond to any reason related to his capacity or conduct and whether Omnicare unreasonably refused to allow Mr Pomare to have a support person present at discussions relating to the dismissal.

- Court's reasoning and outcome:
The Deputy President found that Mr Pomare was protected from unfair dismissal at the time of his dismissal, as he had completed the minimum employment period and the Social, Community, Home Care and Disability Services Industry Award applied to his employment. However, the Deputy President concluded that there was no valid reason for Mr Pomare's dismissal. Although the allegations against Mr Pomare were serious, Omnicare could not establish on the balance of probabilities that most of the conduct which was the subject of the allegations occurred, and the conduct which did occur was not serious enough to justify dismissal. The Deputy President also noted that Mr Pomare's own material in response to the allegations was woefully inadequate, and his failure to provide proper evidence made it difficult to conclude that the dismissal was unfair. As a result, the Deputy President found that Mr Pomare's dismissal was not harsh, unjust, or unreasonable, and the application for unfair dismissal remedy was dismissed.

- Final orders:
The application for unfair dismissal remedy was dismissed.

Orders