Davidson v Griffiths Muir's Pty Ltd - [2010] FWA 4342

[2010] FWA 4342

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Bradley Donald Davidson
v
Griffiths Muir's Pty Ltd
(U2009/822)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 23 JUNE 2010

Summary: unfair dismissal remedy – Applicant found to have been harshly, unjustly or unreasonably terminated – compensation ordered – determination of likely duration of employment ‘speculative’ – s.392(4) mandatory obligation – nominal discount for misconduct at the lower end - support person.

[1] This matter concerns an application made by Mr Bradley Davidson (“the Applicant”) who is seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the FW Act”). The employer, which is responsible for the termination of his employment, is Griffiths Muir’s Pty Ltd t\a The Good Guys (“the Respondent”).

[2] The Applicant was employed by the Respondent on 6 February 2009. He was notified of the termination of his employment on 7 August 2009. The date the termination took effect was 15 August 2009. The Applicant was employed for a period slightly in excess of six months.

[3] For that period, the Applicant performed duties as an administration assistant\cashier on a part-time basis (rostered on for 3 day per week). 1 This information was confirmed by the Applicant over the course of the proceedings in so far as he worked a regular 40 hour fortnight, and performed duties on Mondays, Fridays and Saturdays.

[4] The Respondent initially believed that the Applicant was subject to the minimum period of employment provisions set out at s.382 and s.383 of the FW Act.

[5] That matter was resolved at a Directions Conference when the relevant provisions of the FW Act were made available to the Respondent. The reason for this was that the Respondent agreed that the date of notification of the termination of employment was not the same as the date on which the Applicant’s employment was terminated.

[6] Section 383 of the FW Act is predicated on the date the dismissal took effect and not the date on which the employee was notified (in this case) of the impending termination of employment (which was subject to 7 days notice which the Respondent required to be worked out).

[7] But for the requirement to serve his notice period, the Applicant’s period of employment would have been within the minimum period of employment, as defined.

[8] The Respondent contends that the Applicant’s employment was terminated for a number of reasons, which are set out below. I have dealt with each of the relevant evidentiary themes and incorporated the competing evidence at each point.

Tardiness

[9] The Respondent contended that the Applicant was regularly late starting shifts and on at least one occasion did not attend a shift. The Respondent stated that the Applicant was warned in relation to such conduct and was informed that his employment may be terminated if the conduct persisted. The Applicant was said to have acknowledged this warning and the circumstance…

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: [2010] FWA 4342
Decision Date: 23 JUNE 2010

CaseChat Overview and Summary

Davidson brought an action against Griffiths Muir's Pty Ltd in the Fair Work Commission, seeking relief for an unfair dismissal. The applicant, Mr Davidson, contended that his termination was unjust, harsh, and unreasonable, and he was seeking appropriate compensation and reinstatement. The respondent, Griffiths Muir's Pty Ltd, argued that the dismissal was justified under the relevant provisions of the Fair Work Act 2009.

The primary legal issue before the Commission was whether Mr Davidson's termination constituted an unfair dismissal under section 382 of the Fair Work Act. Additionally, the Commission needed to determine the appropriate remedy if the dismissal was found to be unfair, including the calculation of compensation and the assessment of any mitigating factors such as misconduct. The respondent argued that any misconduct by Mr Davidson warranted a reduction in the compensation awarded, while the applicant sought the full remedy available under the legislation.

In assessing the case, the Commission found that Mr Davidson had indeed been unfairly dismissed, as his termination did not align with the procedural fairness and legitimate reasons required by the Act. The Commission acknowledged the difficulty in determining the likely duration of employment, deeming it speculative. Therefore, in calculating compensation, the Commission applied a nominal discount for misconduct at the lower end, considering the evidence of Mr Davidson's performance and the support provided by his support person. The Commission ordered compensation for the unfair dismissal and noted that reinstatement was not a practical remedy in this case.

The Fair Work Commission ordered that Griffiths Muir's Pty Ltd pay Mr Davidson compensation for the unfair dismissal, with a nominal discount applied for misconduct. The decision highlighted the importance of procedural fairness and the need for employers to adhere to the legislative requirements when dismissing employees.

Orders