DECISION

Fair Work Act 2009
s.604—Appeal of decision

EFEX Group Pty Ltd
v
Gerrard Bennett
(C2020/5748)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ANDERSON
COMMISSIONER MCKENNA

SYDNEY, 13 NOVEMBER 2020

Appeal against decision [2020] FWC 2503 of Commissioner Hampton at Adelaide on 2 July 2020 in matter number U2019/13355.

Overview

[1] EFEX Group Pty Ltd (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a Decision 1 of Commissioner Hampton issued on 2 July 2020. The Decision dealt with an application (the application) by Gerrard Bennett (the Respondent) for an unfair dismissal remedy. The Appellant opposed the application on the basis that the Respondent was not protected from unfair dismissal as he was not an employee. In the Decision, the Commissioner found that the Respondent was engaged as an employee, thereby enlivening the jurisdiction of the Commission to deal with the matter.

[2] On 29 July 2020, the Commission made an order by consent to stay the Decision pending the hearing and determination of this appeal or until further order of the Commission. 2

[3] The matter on appeal was the subject of a telephone hearing on 3 September 2020. The Appellant and the Respondent sought permission to be legally represented. The Full Bench granted the parties’ applications for permission to be represented on the appeal.

[4] The Full Bench has heard the parties on permission to appeal and the substantive appeal.

The decision under appeal

[5] We note the factual matrix summarised by the Commissioner at [33]-[73] in the Decision. In short, the following was outlined:

• The Appellant conducts a services business providing voice, data, printing management and other technology-based services. The Respondent commenced with the Appellant on 1 February 2018. The Respondent’s role essentially was to find and follow-up on sales leads, and seek to make sales of the Appellant’s services.

• The Commissioner noted that in late October 2019, the Respondent was advised that the payment structures and other arrangements were to change in the Adelaide office (where the Respondent was primarily working) to reflect those applying elsewhere. On 1 November 2019, the Appellant made a written offer of employment to the Respondent which detailed, among other matters, that the Respondent would be employed full-time, work 38 hours per week with reasonable additional hours, and be remunerated on a fixed base salary of $60,000 per annum plus certain commissions. The nature of the work and reporting lines were proposed to be largely the same.

• The Respondent communicated his discontentment with the proposed arrangement. On 8 November 2019, Mr Nick Sheehan, the Chief Executive of the Appellant, advised the Respondent through a text message conversation concerning the Respondent seeking further time to consider the impact of the offer upon him, that:

“Ok I understand. I’m finishing your current contract arrangement up, effective today. If you’d like to take a sales role I’ll leave that decision…

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] FWCFB 6112
Decision Date: 13 NOVEMBER 2020

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) was an appeal by Efex Group Pty Ltd against the decision of Commissioner Hampton dated 2 July 2020 in the matter of U2019/13355. The dispute involved the interpretation and application of the Fair Work Act 2009, specifically concerning the dismissal of an employee by the appellant. The decision under appeal was made in the Federal Circuit Court of Australia.

The primary legal issues addressed by the court were whether the dismissal was harsh, unjust, or unreasonable under section 384 of the Fair Work Act, and whether there was procedural fairness in the process that led to the dismissal. The court had to consider the nature of the dismissal, the circumstances surrounding it, and whether the employer had acted in accordance with the principles of procedural fairness.

The court found that the dismissal was not harsh, unjust, or unreasonable given the circumstances. The employee's conduct, which included serious allegations of misconduct, warranted a serious response from the employer. The court was satisfied that the employer had followed a fair and transparent process, ensuring that the employee had an opportunity to respond to the allegations against them. Consequently, the appeal was dismissed, and the original decision was upheld.

As a result of the court's decision, the appeal was dismissed, and the original decision of Commissioner Hampton was affirmed. The dismissal of the employee by Efex Group Pty Ltd was deemed to be within the bounds of procedural fairness and not harsh, unjust, or unreasonable.

Orders