Drew Wallin v Laundy Hotels Pty Ltd - [2023] FWC 1516

[2023] FWC 1516

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Drew Wallin
v

Laundy Hotels Pty Ltd

(U2023/2002)

DEPUTY PRESIDENT CROSS

SYDNEY, 23 JUNE 2023

Application for an unfair dismissal remedy – misconduct – valid reason – application dismissed

On 9 March 2023, Mr Drew Wallin (the Applicant) lodged an application in the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) (the Application).

The Applicant commenced full-time employment as the General Manager of an establishment called the Log Cabin Hotel (the Premises), operated by Laundy Hotels Pty Ltd (the Respondent) on 8 August 2022. The Applicant was dismissed by the Respondent on 3 March 2023, for misconduct involving consumption of alcohol on the premises whilst on duty, and continuing to work thereafter, on the 15th February 2023.

In the hearing of the matter the Applicant represented himself, though from commencement of the Application until 31 May 2023, he was represented by Mr Franzen of electAssociates. The Respondent was represented, with permission, by Mr Read of Counsel, instructed by HTA Legal.

On 25 May 2023, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 15 May 2023, the Applicant filed an Applicant’s Outline of Submissions and a Witness Statement of the Applicant;

(b) On 31 May 2023, the Respondent filed an Outline of Submissions, together with Witness Statements from:

(i) Ms Danielle Richardson, a part owner and senior manager of the Respondent;
(ii) Mr Shane Richardson, also a part owner and senior manager of the Respondent, and the husband of Ms Richardson;
(iii) Mr Justin Tynan, the Chief Operating Officer of the Respondent; and
(iv) Ms Selina Birchall, the Human Resources Manager of the Respondent.

(c) The Applicant filed an Applicant’s Outline of Submissions, and a Witness Statement in Reply on 8 June 2023.

The Hearing of the Application occurred on 23 June 2023 (the Hearing). All witnesses were subject to cross-examination.

Background Facts

Outlined below are the facts as I have found them to exist. The determination of some of those facts has involved determining facts where varying recollections existed between witnesses for the Respondent on one hand, and the Applicant on the other. My reasons for preferring certain evidence is outlined under the heading “Preferred Evidence and Witness Credibility” below.

Prior to his employment as General Manager of the Premises, the Applicant had worked for the Respondent at other venues in senior positions, including as General Manager at the Manly Wharf Hotel.[1]

On 8 July 2022, the Applicant was sent a draft employment contract. On 12 July 2022, the Applicant requested amendments to that contact. The contract was varied as requested by the Applicant (apart from the Clause as to place of work), and included the attachment of a Job Description also requested by the Applicant. The Applicant signed the contract on 21 July 2022 (the Contract), and…

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: [2023] FWC 1516
Decision Date: 23 JUNE 2023

CaseChat Overview and Summary

Drew Wallin has brought an application for unfair dismissal against Laundy Hotels Pty Ltd before the Fair Work Commission (the Commission). The Applicant was dismissed for misconduct, specifically for drinking alcohol on the job. The Commission must determine whether the dismissal was harsh, unjust or unreasonable. The Respondent contended there was a valid reason for dismissal and that the dismissal was not unfair. The Applicant argued that there was no valid reason for dismissal and that the dismissal was unfair. The Commission found that the dismissal was not harsh, unjust or unreasonable. The Applicant was a senior manager with a responsibility to enforce the Respondent's strict no drinking policy. The Applicant was aware of that policy and had been instructed on it on multiple occasions. The Applicant's conduct was established by CCTV footage. The Applicant was notified of the reason for the dismissal and was given an opportunity to respond to the allegations. The Commission found that the dismissal was not harsh, unjust or unreasonable and dismissed the application.

Orders