DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Eduard Sergeev
v
Butterfly Systems Pty Ltd
(U2020/3703)

DEPUTY PRESIDENT SAMS

SYDNEY, 1 OCTOBER 2020

Application for an unfair dismissal remedy – Software Developer in a small business – applicant dismissed for serious misconduct by text message - whether Small Business Fair Dismissal Code (the ‘Code’) complied with - principles considered - non-compliance with Code – applicant’s dismissal ‘harsh, unjust and unreasonable’ - reinstatement inappropriate - compensation ordered.

[1] Mr Eduard Sergeev (hereafter ‘the applicant) was employed by Butterfly Systems Pty Ltd on 20 September 2018, until he was dismissed by Ms Amy Luo, Chief Executive Officer (‘CEO’)/Director on 24 March 2020. At the time of his dismissal, the applicant was a Software Developer on a salary of $120,000, plus superannuation.

[2] There is no dispute that Butterfly Systems Pty Ltd (hereafter the ‘respondent’) is a small business with eight employees, meaning that the applicant’s dismissal must be considered under the Small Business Fair Dismissal Code (the ‘Code’); see: s 385(c) of the Act.

[3] Ms Luo initially claimed that the applicant had not been dismissed, because he had abandoned his employment when he was absent from work on 24 March 2020 without explanation, and refused her direction to return to work immediately. After a phone conversation with the applicant that day – the details of which are contested – Ms Luo sent the applicant a text message which reads as follows:

‘We have tried to contact you without success, you (sic) craziness brings a huge business risk in the business operation, I am going to terminate your employment contract immediately today and please return all company SOMETHING to the office ASAP’.

[4] On 27 March 2020, the applicant filed an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). In accordance with my usual practice, I convened a conciliation conference on 5 June 2020. However, the application was not able to be resolved. Accordingly, I issued directions for a hearing of both the jurisdictional objection and the merits on 15 July 2020. The applicant appeared unrepresented and the respondent was represented by Mr M Gillis, Solicitor, with permission being granted for the respondent to be legally represented, pursuant to s 596 of the Act. I note the applicant did not object to Mr Gillis’ representation.

[5] I raised with Mr Gillis that the respondent had failed to comply with the Commission’s directions in not filing any evidence until the day before the hearing (14 July 2020) when the directions required the filing and service of evidence by 2 July 2020. Despite some reluctance from the applicant, and given Mr Gillis’ very recent involvement in the case, I directed the parties to confer privately to discuss settlement. On resumption, however, the matter had not settled, and the hearing proceeded.

THE EVIDENCE

For the respondent

Ms Amy Luo

[6] As Mr Luo’s statement…

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: [2020] FWC 5217
Decision Date: 1 OCTOBER 2020

CaseChat Overview and Summary

The case of Eduard Sergeev v Butterfly Systems Pty Ltd involved the applicant, a software developer, who sought relief for an unfair dismissal from his employer, Butterfly Systems Pty Ltd. Mr Sergeev was dismissed via a text message, which he claimed did not comply with the Small Business Fair Dismissal Code. The dispute was heard and determined by the Fair Work Commission. The central legal issues revolved around whether the dismissal complied with the Code, and if not, whether the dismissal was harsh, unjust, or unreasonable. The court had to determine if the dismissal process followed the necessary procedural fairness and if the employer provided adequate grounds for the dismissal.

In examining the dismissal, the court considered the principles outlined in the Code, which require fair and transparent communication, especially regarding the grounds for dismissal and the opportunity for the employee to respond. The court found that the dismissal did not meet these standards, as Mr Sergeev was not given a proper opportunity to address the allegations against him and was dismissed without sufficient explanation. The text message did not constitute proper communication, and the employer failed to provide the requisite procedural fairness. Consequently, the court concluded that the dismissal was unfair as it was not conducted in accordance with the Code and was harsh, unjust, and unreasonable.

Given the non-compliance with the Code and the unfairness of the dismissal, the court ordered compensation for Mr Sergeev. The court deemed that reinstatement was not an appropriate remedy, considering the circumstances of the dismissal and the impact on both parties. The final orders included compensation for the unfair dismissal, which was determined based on the lost wages and benefits Mr Sergeev would have received had he not been unfairly dismissed. This decision underscores the importance of adhering to the procedural requirements set forth in the Small Business Fair Dismissal Code to ensure fair treatment in employment terminations.

Orders