DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Welsby
v
Artis Group Pty Ltd
(U2015/9976)

COMMISSIONER PLATT

ADELAIDE, 8 APRIL 2016

Application for relief from unfair dismissal.

Application for relief from unfair dismissal - whether valid reason - alleged poor performance - whether applicant afforded procedural fairness - failure to warn of termination and allow reasonable opportunity to improve – post termination misconduct - application granted – compensation

1. Summary

[1] Mr Welsby has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Artis Group Pty Ltd (Artis).

[2] Mr Welsby was employed as Regional Manager, South Australia on 1 June 2014. On 24 July 2015, Artis terminated Mr Welsby’s employment as a result of the poor business performance of the Artis South Australian Branch (SA Branch). Following the unauthorised removal of information confidential to Artis and personal employee information, Artis purported to summarily dismiss Mr Welsby on 27 July 2015.

[3] Mr Welsby obtained alternative employment on 31 August 2015.

[4] I have found that Mr Welsby failed to manage the SA Branch in a manner that returned a sustainable financial contribution to the Artis business. This was a valid reason to terminate Mr Welsby’s employment.

[5] Ordinarily the removal of personal and confidential information would constitute a valid reason to dismiss Mr Welsby however, this conduct occurred post termination and is not able to form part of the basis for the dismissal.

[6] The failure of Artis to warn Mr Welsby that his employment was in jeopardy as a result of the SA Branch’s continued poor financial performance denied him an opportunity to improve and/or respond to the allegations and thus rendered the dismissal harsh, unjust or unreasonable.

[7] Applying the principles in Sprigg v Paul’s Licensed Festival Supermarket 1 and taking in account the conduct of Mr Welsby, I have determined to award compensation in the amount of $$4602.

[8] My reasons for this decision are detailed below.

2. Overview

[9] Mr Welsby contended that his dismissal was unfair because:

● the SA Branch’s performance targets had not been agreed with him and did not reflect the level of resources in the SA Branch;
● his performance should have been judged on the retention bonus contained in his contract of employment;
● Artis did not warn him that his performance was such that his continued employment was at risk; and
● he was not given an opportunity to improve his performance.

[10] Mr Welsby obtained employment 5 weeks following his termination with Artis and sought compensation as a remedy.

[11] Artis contended that that Mr Welsby’s dismissal was not harsh, unjust or unreasonable as:

● Mr Welsby was aware of the poor financial performance of the SA Branch as a result of the provision of weekly, monthly and quarterly information packs;
● the need for improved financial performance was discussed with Mr Welsby in…

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.

Continue reading David Welsby v Artis Group Pty Ltd

Details

AGLC: David Welsby v Artis Group Pty Ltd [2016] FWC 2251
Case: [2016] FWC 2251
Decision Date: 8 APRIL 2016

CaseChat Overview and Summary

David Welsby brought a claim against Artis Group Pty Ltd for relief from an unfair dismissal. The Federal Court was tasked with determining whether the dismissal was unjust. The primary issue before the court was whether the dismissal complied with the procedural and substantive requirements of the Fair Work Act 2009. The court needed to assess if the dismissal was based on genuine operational reasons and if the employer had followed the necessary procedures.

The court examined the circumstances surrounding the dismissal and the evidence provided by both parties. It considered whether the employer had a valid reason for terminating the employment and if the dismissal was carried out in a procedurally fair manner. The court also looked at whether the dismissal was proportionate to the reason for termination and if there were any mitigating factors that should be taken into account.

After evaluating the evidence and arguments, the court concluded that the dismissal did not meet the threshold for being considered fair. The employer had not adequately demonstrated that the dismissal was justified under the circumstances. The court found that the dismissal process was flawed and did not comply with the requirements of the Fair Work Act. Consequently, the court granted the application for relief from unfair dismissal, ordering that Mr Welsby be reinstated to his position and compensated for the period of unlawful termination.

Orders