Efford v Bte Technology - [2016] FWC 657

[2016] FWC 657

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Efford
v
BTE Technology
(U2015/12374)
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 16 FEBRUARY 2016

Summary – unfair dismissal application under s.394 – dismissal found to be unfair –

remuneration earned since dismissal exceeds salaried earnings since dismissal – future likely

earnings – whether order for compensation is appropriate – necessity to weigh factors in

s.392(2) for the purposes of s.390(3)(b) – no order for remedy issued as a matter of discretion

– both actual and prospective post-employment earnings must be taken into account.

[1] This decision concerns an application by Mr Michael Efford under s.394 of the Fair

Work Act 2009 (“the Act”) by which he seeks an unfair dismissal remedy in respect of his

alleged termination from BTE Technology (“the company”) on 30 September 2015. Mr

Efford’s employer was Mr Travis Kerr, the owner of BTE Technology.

[2] Mr Efford had performed duties as a computer technician for the company since 2009.

The company was a particularly small business comprising some three persons (at most) and

operating out of Mr Kerr’s private premises. The company provided computer repair and

maintenance related services to residential and commercial customers on a callout basis.

[3] I add at this juncture that Mr Kerr did not appear at the hearing to defend his interests.

Mr Kerr did not provide any materials in reply of any substance or attend an earlier directions

conference.

[4] On 25 January 2016 I wrote to Mr Kerr in the following terms addressing Mr Kerr’s

reluctance to become involved in the proceedings:

“Dear Mr Kerr
Thank you for your email.
Senior Deputy President Richards writes as follows:
I understand that parties can find applications such as this a source of
annoyance and frustration, especially when they arise at a time at which other
matters are affecting their lives.

[2016] FWC 657

But for all of that, I must apply the legislation that the Parliament has enacted.
This means – other than where parties voluntarily settle their disputes at an
earlier time – I must determine the application by hearing (in this instance).
If you don’t attend the hearing or make any submissions or provide any
evidence in your defence, I will need to make findings on the basis of the
Applicant’s materials only.
To be clear, the matter will proceed to arbitration hearing as listed on Monday
1 February 2016 at 10am in Brisbane. I would encourage you to engage in the
process to defend your own interests.
I note that the business is said to have ceased to operate. That, however, will
not have any affect on the hearing or any order that I make (other than in
respect of reinstatement as a practical remedy).
In light of the above:
(a) will you be attending next Monday’s hearing and providing evidence in the
employer’s defence?
(b) do you not wish to participate in a preliminary conference to consider if
there is a…

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.

Continue reading Efford v Bte Technology

Details

AGLC: Efford v Bte Technology [2016] FWC 657
Case: [2016] FWC 657
Decision Date: 16 February 2016

CaseChat Overview and Summary

This decision concerns an application by Mr Michael Efford under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his alleged termination from BTE Technology on 30 September 2015. Mr Efford was employed as a computer technician by Mr Travis Kerr, the owner of BTE Technology, which was a small business providing computer repair and maintenance services to residential and commercial customers. The employer did not attend the hearing or provide any submissions or evidence in his defence. Mr Efford's dismissal was found to be harsh, unjust and unreasonable, as there was no valid reason for the dismissal, Mr Efford was not notified of the reason for his dismissal at the time, he was not given an opportunity to respond to any reason related to his capacity or conduct, and the small size of the employer's enterprise impacted on the procedures followed in effecting the dismissal. However, no order for compensation was made as a matter of discretion, as Mr Efford's actual and prospective post-employment earnings well exceeded those whilst as an employee with BTE Technology. The court found that such an outcome represented a fair go all around for the purposes of the Act.

Orders