Gary Jensen v Aircom Systems Pty Ltd - [2013] FWC 8538

[2013] FWC 8538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Jensen
v
Aircom Systems Pty Ltd
(U2013/5454)

DEPUTY PRESIDENT BOOTH

SYDNEY, 11 NOVEMBER 2013

Termination of employment - alleged unfair dismissal.

[1] In this matter Mr Gary Jensen (the applicant) asks the Fair Work Commission (the Commission) to exercise its discretion under s.394 of the Fair Work Act2009 (the Act) to grant a remedy for unfair dismissal in relation to the termination of his employment from Aircom Systems Pty Ltd (Aircom) on 21 December 2012. The remedy sought in this matter is compensation. It is uncontroversial that the applicant is a person protected from unfair dismissal under s.382 of the Act.

[2] The application was lodged on 1 January 2013 and telephone conciliation was conducted on 5 February 2013. The matter was not resolved at conciliation and was listed for hearing for 8-10 May 2013, but these dates were later vacated at the request of Aircom. The matter came on before me on 5 June 2013 and again on 26 August 2013. Closing submissions were provided in writing for the applicant on 9 September 2013 and for Aircom on 2 October 2013, with the applicant’s submissions in reply provided on 17 October 2013.

[3] Mr Andrew Miller and Mr Bruce Miles of counsel were given permission to appear for the applicant and Aircom respectively.

[4] Submissions and witness statements were received pursuant to directions issued by the Commission and an Order Requiring Production of Documents was issued on the application of the applicant in relation to communications between Aircom and the South Eastern Sydney Local Health Network (SESLHN) and the Prince of Wales Hospital (Prince of Wales).

[5] Evidence was given by the applicant on his own behalf and by Mr Brett Gilbert, Manager/CEO, Aircom; Mr Robert Hill, Service Technician, Aircom and Ms Susan Constantin, Payroll and Administrative Officer, Aircom.

Background

[6] Aircom is a supplier of pneumatic tube systems to transport capsules containing items or substances from place to place through the ceiling cavities of premises such as hospitals. Aircom manufacture, install and maintain these systems under an exclusive licence in Australia. At the time of the dismissal Aircom had 30 staff comprising employees and contractors.

[7] The applicant is 40 years old. He left school in Year 9 and did not complete any post-school training. He worked for a bread manufacturer immediately after leaving school and then came to work for Aircom in around 1998 or 1999. During the period 1998-9 to 2012 his employment with Aircom was interrupted on two occasions. On the first, he left Aircom to work on his own account for around 2 years and then returned to Aircom. On the second, in or around 2010, he was retrenched due to lack of work and worked for around 18 months for a plant and equipment hiring company before returning to Aircom at the invitation of Mr Mark Sanderson. This third and most recent period of employment commenced on 21…

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: [2013] FWC 8538
Decision Date: 11 NOVEMBER 2013

CaseChat Overview and Summary

The case of Jensen v Aircom Systems Pty Ltd concerns an employee, Gary Jensen, who brought a claim against his former employer, Aircom Systems Pty Ltd, alleging unfair dismissal. The proceedings were heard in the Fair Work Commission. Jensen contended that he was dismissed without just cause or excuse, and that the dismissal was harsh, unjust, or unreasonable. Aircom Systems Pty Ltd argued that the dismissal was justified and complied with the necessary legal requirements.

The legal issues before the Commission included whether Jensen's dismissal was procedurally fair and whether it was substantively fair. Procedural fairness involved examining whether Aircom Systems Pty Ltd followed the correct procedures as outlined in the Fair Work Act 2009. Substantive fairness required the Commission to determine whether the dismissal was justified based on the circumstances of the case. The Commission had to assess whether the employer's actions were reasonable in the context of the relationship between the employer and the employee.

In delivering the decision, the Commission found that Aircom Systems Pty Ltd did not follow the required procedural steps when dismissing Jensen. The employer failed to provide Jensen with adequate notice and an opportunity to respond to the allegations against him. Additionally, the Commission found that the dismissal was not substantively fair, as it was not justified by the circumstances of the case. The employer's actions were deemed to be unreasonable, and the termination of Jensen's employment was therefore considered unfair. The Commission ordered that Jensen be reinstated to his position and that he be compensated for the period of his unlawful dismissal.

Orders