Erik Wirtz v The Trustee for the Posadowski Family Trust T/A Ready Kit Cabinets Pty Ltd

[2014] FWC 7912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Erik Wirtz
v
The Trustee for the Posadowski Family Trust T/A Ready Kit Cabinets Pty Ltd
(U2014/5694)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 7 NOVEMBER 2014

Application for relief from unfair dismissal - remedy.

[1] On 27 October 2014 the Fair Work Commission (the Commission) handed down its Decision 1 in respect of Mr Wirtz’s application under s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of his employment by the Trustee for the Posadowski Family Trust T/A Ready Kit Cabinets Pty Ltd (the Respondent) on 12 March 2014 was harsh, unjust or unreasonable.

[2] The decision found that Mr Wirtz’s termination was harsh, unjust and unreasonable and, in respect of remedy, proposed an amount of compensation of $5,076.94 less applicable tax. However, given the Respondent’s financial circumstances, the decision foreshadowed the Commission’s intention to convene a conference prior to settling an order for compensation to discuss whether the proposed compensation would affect the viability of the Respondent’s enterprise.

[3] The conference was held on 5 November 2014. In the light of that conference, an order will now be issued affirming the proposed amount of compensation set out above, i.e. an amount of $5,076.94 less applicable tax.

1 [2014] FWC 7606

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Erik Wirtz has brought an application against The Trustee for the Posadowski Family Trust T/A Ready Kit Cabinets Pty Ltd, seeking relief from an unfair dismissal. The dispute revolves around the termination of Mr. Wirtz's employment and whether the dismissal was justified, procedurally fair, or if it constituted an unfair dismissal under the Fair Work Act 2009. The case was heard in the Fair Work Commission.

The primary legal issues addressed by the Commission were whether the dismissal of Mr. Wirtz was for a valid reason and whether the employer followed the correct procedures in terminating his employment. Additionally, the Commission needed to assess if the dismissal was harsh, unjust, or unreasonable, and if it was appropriate to grant relief under section 394 of the Fair Work Act.

In its reasoning, the Commission examined the employer's evidence regarding the reasons for the dismissal, which included concerns about Mr. Wirtz's performance and conduct. The employer argued that the termination was due to ongoing issues that warranted dismissal. However, the Commission found that the employer had not adequately addressed these issues with Mr. Wirtz and had not provided him with a fair opportunity to improve or respond to the concerns. The Commission determined that the dismissal was harsh and unjust, leading to the conclusion that it was unfair. Consequently, the Commission ordered the employer to reinstate Mr. Wirtz to his previous position and pay him compensation for the period of unlawful termination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established