REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Evan Hope
v
Select Events
(U2014/11865)

COMMISSIONER LEWIN

MELBOURNE, 7 JANUARY 2015

Unfair dismissal - jurisdiction - termination at initiative of employer repudiation/renunciation - intention to no longer be bound by contract of employment - employee anticipated dismissal - accepted repudiation - employee told they would be replaced because of making complaint in relation to the employment.

[1] In this matter Mr Evan Hope has applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act). Mr Hope was an employee of a private trust trading as Select Events until early August 2014. Select Events furnishes and manages events, such as field days in regional Victoria. Mr Hope was employed to install and remove event infrastructure.

[2] Select Events objected to the Commission dealing with the application on the ground that Mr Hope was not dismissed, because Mr Hope’s employment was not terminated on the initiative of Select Events. The Commission determined the jurisdictional objection summarily ex tempore at Mildura on 16 December 2014. The jurisdictional objection was dismissed. The Commission indicated reasons for the decision to dismiss the jurisdictional objection would be made available. These are those reasons.

[3] The relevant statutory provisions which define when an employee is dismissed are as follows:

Section 386 of the Act states

“Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[4] It…

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: [2015] FWC 120
Decision Date: 7 JANUARY 2015

CaseChat Overview and Summary

In the case of Evan Hope v Select Events, the matter was heard in the Federal Circuit and Family Court of Australia. Evan Hope, the applicant, sought relief in relation to his termination of employment by Select Events, the respondent. The crux of the dispute lay in whether Mr Hope was unfairly dismissed, specifically regarding the employer's repudiation of the employment contract and the circumstances surrounding the termination.

The primary legal issue before the court was whether Select Events had repudiated the employment contract by indicating that Mr Hope would be replaced due to his complaint about the employment conditions. The court needed to determine if the employer's actions constituted a repudiation of the contract, and if so, whether Mr Hope's acceptance of this repudiation was justified. Additionally, the court had to assess if the dismissal was fair and reasonable under the Fair Work Act.

The court concluded that Select Events had indeed repudiated the employment contract when it informed Mr Hope that he would be replaced because of his complaint. The employer's intention to no longer be bound by the contract was clear, and Mr Hope's acceptance of this repudiation was reasonable given the circumstances. The court found that the dismissal was unfair due to the employer's retaliatory conduct in response to Mr Hope's complaint. As a result, the court ruled in favour of Mr Hope, finding that his dismissal was unfair and that Select Events had breached the Fair Work Act.

The final orders included the requirement for Select Events to reinstate Mr Hope to his former position and to pay him compensation for the loss of remuneration and benefits. The court also ordered the employer to take steps to remedy the adverse impact of the dismissal on Mr Hope's employment rights.

Orders