DECISION

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

Duane Farrell
v
Jackson & Jackson Refrigeration Pty Ltd
(U2016/1601)

COMMISSIONER HUNT

BRISBANE, 6 JANUARY 2017

Application for relief from unfair dismissal – jurisdictional objection out of time application and “no dismissal.” – whether redundancy or resignation – found to be a resignation – no dismissal – application dismissed

Introduction

[1] This decision relates to an application made by Mr Duane Farrell pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr Farrell alleges that the termination of his employment from Jackson & Jackson Refrigeration Pty Ltd (Jackson Refrigeration) was harsh, unjust and/or unreasonable.

[2] Jackson Refrigeration has raised two jurisdictional objections to the application alleging that Mr Farrell was not dismissed at the initiative of Jackson Refrigeration and that Mr Farrell did not make his application within time.

[3] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objections. The matter was listed for a jurisdiction hearing on 17 October 2016 in Cairns.

[4] Mr Farrell was granted leave pursuant to s.596 of the Act to be represented by a paid agent, Mr Miles Heffernan of Fair Work Claims. Mr Farrell gave evidence on his own behalf.

[5] Jackson Refrigeration was granted leave pursuant to s.596 to be represented by Mr Chris Kahler, Solicitor of Kahler Lawyers. The following witnesses gave evidence on behalf of Jackson Refrigeration:

Mr Robert Jackson, Director;

Mr Jason Morrissey, Service Manager; and

Ms Aimee Stampa, Financial Controller.

Background

[6] Mr Farrell commenced employment with Jackson Refrigeration on 13 October 2014 as a Refrigeration Technician.

[7] In or around mid-2015, Mr Farrell had discussions with Mr Jackson relevant to his past work experience and skills as a Service Supervisor with a large refrigeration company. Mr Jackson considered Mr Farrell’s skills and experience beyond those of a Refrigeration Technician, and by October 2015 Mr Farrell had been promoted to the position of Service Supervisor.

[8] A part of Mr Farrell’s duties then became visiting customers at their premises. Mr Jackson’s evidence is that customers very much appreciated this, rather than only being visited for repairs. Mr Farrell also gave administrative support to Jackson Refrigeration’s service operations.

[9] On 17 February 2016, a management meeting took place at Jackson Refrigeration’s Cairns office. Mr Jackson, Mr Morrissey and Ms Stampa were in attendance at the meeting. It was determined that the service department in which Mr Farrell worked had overheads that were too high. There needed to be cost reductions in this department to increase profitability.

[10] Mr Jackson instructed Mr Morrissey to convene a meeting with Mr Farrell and discuss with him a new role. It was foreshadowed that Mr Farrell would perform about 50% of his duties in the office as a Service Supervisor, and the other 50% performing Refrigeration Technician duties. He would remain on the salary of a Service Supervisor.

Meeting of 17…

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: [2017] FWC 126
Decision Date: 6 JANUARY 2017

CaseChat Overview and Summary

Duane Farrell applied for relief from his dismissal on the basis that it was unfair. Jackson & Jackson Refrigeration Pty Ltd contested the application, arguing that it was filed out of time and that there had been no dismissal. The case was heard in the Fair Work Commission. The central issue before the court was whether the dismissal was a redundancy or a resignation. Additionally, the court had to determine if the application for relief was filed within the required time frame and whether there had indeed been a dismissal.

The court considered the evidence provided by both parties and found that Mr. Farrell's departure was a resignation, not a redundancy. The evidence demonstrated that Mr. Farrell had willingly accepted a termination package offered by the company, which was indicative of a resignation rather than a dismissal. As such, the court concluded that there had been no dismissal, and therefore, the application for relief from unfair dismissal was not applicable. Furthermore, the court noted that the application was filed beyond the prescribed time frame, adding another layer to the reasons why the application was dismissed. The court dismissed the application on the basis that there had been no dismissal and the application was out of time.

Orders