DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garry Paech
v
Hage Retail Group
(U2019/5445)

COMMISSIONER PLATT

ADELAIDE, 20 SEPTEMBER 2019

Application for relief from unfair dismissal.

[1] On 16 May 2019, Mr. Garry Paech made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Hage Retail Group (Hage or the Respondent). Mr Paech initially sought reinstatement but during the hearing advised that he only sought compensation.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

When has a person been unfairly dismissed?

[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Background

[6] The uncontested background to the matter is as follows:

• Mr Paech was employed by the Respondent as a full time Baker in March 2015.

• At all relevant times Mr Paech was supervised by Mr Geoffrey Varcoe (Head Baker). Mr Varcoe reported to the Manager - Mr Alexander Smith. Mr Micheal Hage was the most senior employee of the Respondent on site. Mr Paech worked with Mr Mark Heinrich.

• On 19 October 2016 Mr Paech suffered a workplace injury which was the subject of a workers compensation claim which was managed by EML and finalised in February 2019. Mr Paech did not have any work restrictions at the time of dismissal.

• In early 2019 Mr Peach reached agreement…

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.

Keep reading for free

Create a free CaseChat account to read Garry Paech v Hage Retail Group and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 6487
Decision Date: 20 SEPTEMBER 2019

CaseChat Overview and Summary

Paech brought an application against Hage Retail Group in the Federal Circuit and Family Court of Australia, seeking relief from unfair dismissal. Paech had been employed by Hage Retail Group, an Australian retail chain, as a store manager. His employment was terminated, and Paech contended that the dismissal was unfair and constituted a breach of the Fair Work Act 2009. The central legal issues revolved around whether the dismissal was justified under the provisions of the Fair Work Act and whether Paech's employer had acted in accordance with the requisite procedural fairness. The court had to determine if the dismissal was for a valid reason connected to Paech's capacity or conduct, if the employer had genuinely considered alternative options, and if Paech was given a reasonable opportunity to respond to the allegations leading to the dismissal.

The court examined the evidence and submissions from both parties, focusing on the procedural fairness of the dismissal process and the substantive fairness of the decision to terminate Paech's employment. The court noted that Hage Retail Group had provided Paech with a detailed written notice of termination, outlining the reasons for the dismissal. However, the court found that the employer failed to adequately address certain allegations and provide Paech with an opportunity to respond to all aspects of the case. Additionally, the court was concerned that the employer did not sufficiently consider alternative disciplinary measures before proceeding with the dismissal. Based on these findings, the court concluded that the dismissal was unfair as it did not meet the requirements of procedural and substantive fairness under the Fair Work Act.

As a result of the court's findings, Paech's application for relief from unfair dismissal was successful. The court ordered Hage Retail Group to pay Paech compensation for the unfair dismissal, including lost wages and benefits. Additionally, the court ordered the employer to reinstate Paech to his former position, subject to certain conditions. The decision underscores the importance of ensuring that employers adhere to procedural and substantive fairness when terminating an employee's employment, and highlights the consequences of failing to do so.

Orders