Gai Reng v JBS Australia Pty Limited

[2013] FWC 379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gai Reng
v
JBS Australia Pty Limited
(U2012/12197)

COMMISSIONER RYAN

MELBOURNE, 17 JANUARY 2013

Termination of employment - termination harsh, unjust and/or unreasonable - determination of amount of lost remuneration.

[1] On 27 December 2012, I published a decision in this matter recording my reasons for finding the termination of the applicant’s employment by JBS Australia Pty Limited was harsh, unjust and/or unreasonable (my earlier decision). An order granting reinstatement and continuity of employment was issued with my earlier decision.

[2] In my earlier decision I reserved the matter of the determination of the amount of lost remuneration under s.391(3) and (4) of the Fair Work Act 2009 to be paid to Mr Reng.

[3] The matter was listed for further hearing in relation to lost remuneration on 11 January 2013. During proceedings Mr Reng gave evidence and submissions were made by Mr Portelli from the National Union of Workers and by Mr Boyce for the respondent.

[4] It was agreed between Mr Portelli and Mr Boyce that they would hold discussions following the conclusion of the hearing in order to see if consent could be reached on the amount of lost remuneration to be ordered.

[5] Agreement was reached between the parties that the amount of lost remuneration to be ordered is $9,000, less appropriate taxation, payable within 14 days of my order.

[6] An order in those terms will issue together with this decision.

COMMISSIONER

Appearances:

A. Portelli, National Union of Workers, for the Applicant

S. Button together with G. Boyce of counsel for the Respondent

Hearing details:

2013.

Melbourne:

January 11 (by telephone).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter of Gai Reng versus JBS Australia Pty Limited was heard in the Fair Work Commission, where the primary issue was the fairness of the termination of the plaintiff's employment. Gai Reng, the applicant, sought redress for what he alleged was an unjust termination by his employer, JBS Australia Pty Limited. The dispute centred on whether the termination was harsh, unjust, or unreasonable under the Fair Work Act 2009. The applicant claimed that he was dismissed without just cause or excuse and was not provided with adequate notice or an opportunity to respond to the allegations against him.

The legal issues before the Commission involved interpreting the criteria for what constitutes a harsh, unjust, or unreasonable termination, as well as determining the appropriate remedy for the applicant. The Commission had to assess the fairness of the employer's actions in terminating the employment and consider the applicant's entitlement to lost remuneration if the termination was found to be unjust. The Commission also needed to evaluate the evidence presented by both parties regarding the circumstances of the termination and the applicant's employment history.

In its decision, the Commission found that the termination of Gai Reng's employment was indeed harsh, unjust, and unreasonable. The employer failed to provide the applicant with the opportunity to respond to the allegations of misconduct, and the decision to terminate was made without a fair process. The Commission also determined that the applicant was entitled to lost remuneration for the period between the termination and the hearing of the matter. After considering all the evidence, the Commission concluded that the appropriate amount of lost remuneration should be awarded to the applicant, taking into account his income and the duration of the employment. The final orders included compensation for the applicant in the form of lost remuneration, reflecting the Commission's determination that the termination was unjust and required remedial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established