Dharun Prasad v Cordina Chicken Farms Pty Limited - [2019] FWCFB 8748

[2019] FWC 7075 [Note: An appeal pursuant to s.604 (C2019/6824) was lodged against this decision - refer to Full Bench decision dated 24 December 2019 [2019] FWCFB 8661 for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Dharun Prasad

Cordina Chicken Farms Pty Limited

(U2019/2419)

COMMISSIONER CAMBRIDGE

SYDNEY, 18 OCTOBER 2019

Unfair dismissal - unsatisfactory performance - failure to report or investigate significant safety incident - no proper contemplation of reasonable explanation provided by applicant - no valid reason for dismissal - no proper consideration of alternatives to dismissal - dismissal harsh, unjust and unreasonable - reinstatement appropriate remedy.

This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 5 March 2019, and it was made by Dharun Prasad (the applicant). The respondent employer is Cordina Chicken Farms Pty Limited (ABN: 29 003 058 428), (the employer or Cordina).

The application indicated that the date that the applicant’s dismissal took effect was 5 February 2019. Consequently, the application was not made within the 21 day time limit prescribed by subsection 394 (2) of the Act. However, the Fair Work Commission (the Commission) issued a Decision on 19 July 2019, [2019] FWC 4867, whereby Dean DP granted the applicant an extension of time, and the matter was subsequently re-allocated for substantive Determination.

The matter was the subject of a Pre-Hearing Conference held on 26 July 2019. At the Pre-Hearing Conference the Commission granted permission, pursuant to s. 596 of the Act, for either Party to be represented by lawyers or paid agents. Further, the Commission made Directions for the Parties to file and serve evidence and submissions prior to a Hearing fixed for 19 September 2019.

At the Hearing held on 19 September, the applicant was represented by Mr D Potts, solicitor from Kells lawyers. Mr Potts called the applicant as the only witness to provide evidence in support of the unfair dismissal claim. The employer was represented by Mr D Collinge, solicitor from Gills Delaney lawyers. Mr Collinge called the employer’s Group HR Manager, Mr A Chandra, as the only witness who provided evidence in opposition to the unfair dismissal claim.

Background

The applicant is a man of some 57 years of age who had worked for the employer for about 25 ½ years. The applicant was initially engaged to perform production line work and he was subsequently promoted to the positions of; a Production Supervisor; a Production Planner; and he acted in the role of Production Manager. In April 2018, the applicant was promoted to a position described as Assistant Production Manager which involved direct responsibility for between 25 and 30 employees in a particular section of the employer’s operation.

The employer operates a large-scale poultry business involving the processing, preparation and distribution of chicken meat products throughout Australia and to various export markets. The applicant worked at…

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

AGLC: Dharun Prasad v Cordina Chicken Farms Pty Limited [2019] FWCFB 8661
Case: [2019] FWCFB 8748
Decision Date: 18 OCTOBER 2019

CaseChat Overview and Summary

The case of Dharun Prasad v Cordina Chicken Farms Pty Limited involved an employee, Dharun Prasad, who was dismissed from his position with Cordina Chicken Farms Pty Limited. The primary dispute centred around the fairness of the dismissal, with Prasad arguing that it was unjust and unreasonable. The case was heard in the Fair Work Commission, an Australian federal statutory court with jurisdiction over unfair dismissal claims under the Fair Work Act 2009. The key issues before the Commission were whether the dismissal was justified on the grounds of unsatisfactory performance and failure to report a significant safety incident, and if the employer had properly considered Prasad's explanation and alternatives to dismissal. The Commission found that the employer failed to adequately investigate the safety incident and did not give proper consideration to Prasad's explanation. It was also determined that the employer did not have a valid reason for dismissal and did not properly consider alternatives.

The Commission examined the evidence and submissions from both parties, focusing on the employer's process for investigating the safety incident and the fairness of the dismissal. It was found that the employer did not properly investigate the safety incident and failed to give Prasad an opportunity to explain his actions. Furthermore, the employer did not have a valid reason for dismissal, as it was based on an assumption that Prasad was at fault without proper investigation. The Commission also noted that the employer did not consider alternatives to dismissal, such as a warning or suspension. Given these findings, the Commission concluded that the dismissal was harsh, unjust, and unreasonable.

As a result of the Commission's findings, Prasad was awarded reinstatement to his former position or, in the alternative, compensation for the unfair dismissal. The employer was ordered to pay Prasad's costs associated with the proceedings. This decision highlights the importance of employers thoroughly investigating incidents and considering alternatives to dismissal before making a final decision on employee termination.

Orders