DECISION

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

Dax Knight
v
Total Lining Systems Pty Ltd
(U2018/7089)

COMMISSIONER CAMBRIDGE

SYDNEY, 15 JANUARY 2019

Unfair dismissal - jurisdictional objections - s. 386 - resignation - no constructive dismissal - applicant subsequently dismissed summarily - subsequent dismissal was not consistent with the small business fair dismissal code - dismissal found to have been harsh, unjust and unreasonable - limited compensation Ordered.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Dax Knight (the applicant). The respondent employer is Total Lining Systems Pty Ltd (ABN: 37 155 445 417) (the employer).

[2] The application was filed at Sydney on 9 July 2018, and the employer filed a response to unfair dismissal application, Form F3, on 1 August 2018. The application indicated that the date that the applicant was dismissed was 19 June 2018. The application also mentioned that a verbal resignation had been provided on 18 June 2018. Consequently, in respect to the termination of employment occurring on either 18 or 19 June 2018, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The Form F3 provided by the employer raised jurisdictional objections to the application on the basis that the applicant was not dismissed, and alternatively, that the employer was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (SBFD Code). Notwithstanding the jurisdictional objections raised by the employer, conciliation of the matter was attempted without success.

[4] Subsequently, the Fair Work Commission (the Commission) issued Directions which required the Parties to file and serve all evidence and other material concerning both the substantive application and the jurisdictional objections raised by the employer. The application and the jurisdictional objections raised by the employer were listed for Arbitration Conference/Hearing before the Commission on 25 October 2018.

[5] Further conciliation of the claim was traversed at the commencement of the scheduled Hearing held on 25 October 2018. Further conciliation was unsuccessful, and the matter proceeded to a Hearing which dealt with the determination of the jurisdictional objections raised by the employer, which involved firstly, the question of whether the applicant was a dismissed employee, and secondly, whether any dismissal of the applicant was consistent with the SBFD Code.

[6] At the Hearing, the applicant represented himself. The applicant gave evidence as one of two witnesses who were called to provide evidence in support of the unfair dismissal claim. In addition, the Commission permitted four further witness statements made on behalf of the applicant to be introduced into evidence without the deponents of those statements being called as witnesses. The employer was represented by its Director and Secretary, Mr S Short, who provided evidence as the only witness called on behalf of the employer. The employer was also permitted…

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: [2019] FWC 28
Decision Date: 15 JANUARY 2019

CaseChat Overview and Summary

Dax Knight brought an application against Total Lining Systems Pty Ltd in the Fair Work Commission, seeking relief for an alleged unfair dismissal. Knight claimed that his resignation from the company was not voluntary but rather a result of constructive dismissal due to the employer's conduct. Subsequently, Knight was summarily dismissed, leading to the current application. Total Lining Systems contested the application, arguing that Knight's resignation was voluntary and that the subsequent dismissal was fair. The court had to determine whether Knight's resignation was genuinely voluntary and whether the subsequent dismissal was consistent with the small business fair dismissal code.

The primary legal issues were whether Knight's resignation was genuinely voluntary and whether the subsequent dismissal was harsh, unjust, or unreasonable under the Fair Work Act. The court considered the nature of Knight's employment, the circumstances leading to his resignation, and the employer's conduct in terminating his employment. It also examined whether the dismissal complied with the requirements of the small business fair dismissal code. The court found that Knight's resignation was not genuinely voluntary, as it was influenced by the employer's conduct, which amounted to constructive dismissal. However, the subsequent dismissal was deemed to be inconsistent with the small business fair dismissal code, leading to a finding that it was harsh, unjust, and unreasonable.

The court concluded that the dismissal was unfair and awarded limited compensation to Knight. The reasoning was based on the employer's failure to follow the fair dismissal process as outlined in the small business fair dismissal code. The court found that the dismissal was not only procedurally unfair but also substantively unjust, given the circumstances surrounding the employment relationship. The Fair Work Commission ordered that Knight be compensated for the unfair dismissal, reflecting the severity of the employer's failure to adhere to the fair dismissal requirements.

Orders