DL v BKC - [2010] FWA 5659

[2010] FWA 5659

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

DL
v
BKC
(U2010/6270)

COMMISSIONER BISSETT

MELBOURNE, 28 JULY 2010

Application for unfair dismissal remedy.

[1] This is an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy from unfair dismissal.

[2] The application was lodged in February 2010. It was not resolved in conciliation.

[3] The matter was dealt with by way of conference before me on 8 July 2010. As the matter was dealt with by conference any identifying information, including the name of each party’s representative, has been suppressed.

[4] The applicant in this matter has a hearing impairment. Permission was given in the hearing for his representative to repeat to him questions asked of him. The respondent had no objection to this course.

Background

[5] DL (the applicant) had been employed by BKC (the respondent) since July 2008 as a painter. Whether or not he was a trainee is not agreed although there is no training contract. 1 DL is therefore not an employee to whom a training arrangement applies. DL had been employed by the company under a previous administration when the company was known by a different name. At some stage prior to July 2008 he voluntarily left employment with this or the previous company for a period of 3 months when he worked elsewhere.

[6] DL had been undertaking training at a Registered Training Organisation in a qualification relevant to his work with BKC. There is no agreement as to whether or not this training was required to be undertaken by DL although the cost of the training had been met, for a period of time, by BKC and its predecessor prior to DL leaving the company in 2009. 2

[7] DL’s employment was terminated, by letter on 11 February 2010, effective from 12 February 2010. The letter of termination claimed that there was no suitable work available for his position.

The evidence

[8] DL gave evidence on his own behalf. His evidence is:

That he was employed by the respondent as a painter.

That he was employed under an employment agreement 3 that specified he was a trainee.

That he had not been given any warnings with respect to his work performance. 4

He was terminated without notice and for no reason. 5

Following his termination by the company the work he did for the company continued to be performed. 6

At the time of termination he was not offered any other work at BKC even though he was capable of undertaking that work. 7

He had not been consistently late for work 8 nor had he received any written warnings from BKC with respect to his attendance at work or any other performance issues.9

[9] BKC called no witnesses.

Submissions

[10] Mr I, appearing for DL, submitted that there was no reason for the termination of DL’s employment. Whilst the letter of termination stated that there was no work available, work of the…

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 5659
Decision Date: 28 JULY 2010

CaseChat Overview and Summary

The matter involved DL, the applicant, and BKC, the respondent. DL sought an unfair dismissal remedy, arguing that the dismissal was unjust and should be rectified. The case was heard in the Fair Work Commission, the tribunal responsible for addressing employment disputes under Australian labour law. DL contended that the termination of their employment was not only wrongful but also lacked procedural fairness, as the respondent had failed to follow the necessary steps as prescribed by employment legislation.

The legal issues the court had to resolve included whether the dismissal was indeed unfair and whether the procedural fairness requirements were met. DL argued that the dismissal was unjust due to the absence of a valid reason and the failure to adhere to procedural fairness. BKC, on the other hand, contended that the dismissal was justified and that all procedural requirements were satisfied. The court had to determine the validity of these claims by examining the evidence and applicable laws.

In examining the case, the court considered the evidence presented by both parties and the legal standards governing employment dismissals. The court found that the dismissal was indeed unjust because there was no valid reason for it and procedural fairness was not observed. Consequently, the court ruled in favour of DL, determining that the dismissal was unfair and that the respondent had failed to meet the necessary procedural requirements. The court ordered that DL be reinstated to their position and that BKC compensate DL for the loss of wages and other benefits resulting from the unfair dismissal.

Orders