DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Midford
v
Loadpro Australia Pty Ltd
(U2020/15591)

COMMISSIONER SIMPSON

BRISBANE, 1 APRIL 2021

Application for unfair dismissal remedy – Respondent withdrew jurisdictional objection on basis of genuine redundancy – New jurisdictional objection applicant not dismissed – Finding Applicant was dismissed – Respondent submits job no longer required – Applicants dismissal related to capacity as a welder – Respondent failed to raise concerns with Applicants performance – No valid reason – Dismissal procedurally unfair – Applicant does not seek reinstatement – Compensation ordered.

[1] On 4 December 2020, Mr Gary Midford made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by his employer, Loadpro Australia Pty Ltd (Loadpro).

[2] In its Form F3 – Employer Response to unfair dismissal application, Loadpro raised a jurisdictional objection to the application on the basis that the dismissal was a case of genuine redundancy.

[3] However, Loadpro subsequently filed a Form F4 – Objection to unfair dismissal application, withdrawing its objection on the basis of genuine redundancy, and instead raising a jurisdictional objection on the basis that Mr Midford was not dismissed at the employer’s initiative.

[4] Materials were filed by the parties, and the matter was listed for Hearing by Video using Microsoft Teams, on 8 and 9 March 2021. At the hearing, Mr Midford was represented by Mr Bunnag of the Australian Manufacturing Workers’ Union. Mr Robert Hall-Boman of the Chamber of Commerce and Industry Queensland represented Loadpro.

BACKGROUND

[5] Loadpro operates as a manufacturer of the Loadpro X60 Offroad Truck, with its manufacturing operations at Wakerley, Brisbane. It is a small business, and at the time of Mr Midford’s employment ceasing, it employed 11 employees.

[6] Mr Midford was employed by Loadpro on a regular and systematic casual basis as a welder from March 2019 until his employment ceased on 20 November 2021.

[7] On commencement, Mr Midford worked around 39-40 hours per week, at a rate of $37.00 per hour. At that time, Mr Midford was Loadpro’s only ‘boilermaker/welder’. At the time of his employment ceasing, Mr Midford’s hourly wage was $40.00.

[8] Mr Midford left Loadpro’s workplace around 3pm on the afternoon of 20 November 2020, taking his tools and personal belongings with him. That evening, Mr Midford had a telephone conversation with Mr Don Myles, Company Secretary of Loadpro Australia Pty Ltd, during which he raised concerns about the business and management.

[9] Mr Midford then received a text message from Mr Myles at 5:35pm on 20 November 2020 which stated:

“Hi Gary, Thanks for the phone call. Best if you send Ron a text resigning from the job. My private email address is [redacted] good luck in finding work. Cheers Don.”

[10] Also on 20 November 2020, Mr Ron Schliebs (Mr R Schliebs), Managing Director for Loadpro, had sent an email to Mr Midford at 3.56pm stating:

“Hi Gary,

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: [2021] FWC 1779
Decision Date: 1 APRIL 2021

CaseChat Overview and Summary

The case of Gary Midford v Loadpro Australia Pty Ltd involved an application for an unfair dismissal remedy. The applicant, Mr Midford, was an employee of the respondent, Loadpro Australia Pty Ltd, and alleged that he was unfairly dismissed. The respondent initially raised a jurisdictional objection but later withdrew it on the basis of a genuine redundancy. However, the court found that the applicant was indeed dismissed. The central issue was whether the dismissal was justified and whether it was conducted fairly.

The legal issues before the court included whether the respondent had a valid reason for dismissing the applicant and whether the dismissal process was procedurally fair. The respondent argued that the applicant's role as a welder was no longer required due to operational changes, but the court found that the respondent had failed to raise concerns about the applicant's performance prior to the dismissal. The court held that there was no valid reason for the dismissal and that the process was procedurally unfair. The applicant did not seek reinstatement but requested compensation.

The court concluded that the dismissal was unfair and ordered the respondent to pay compensation to the applicant. The court found that the respondent had not demonstrated that the position held by the applicant was genuinely redundant or that there were operational changes necessitating the redundancy. Additionally, the court noted that the respondent did not raise any performance-related concerns with the applicant before the dismissal, which further supported the finding of procedural unfairness. The court's decision was based on the evidence that the dismissal was not justified and did not follow a fair process.

The final orders of the court included the determination that the dismissal was unfair and the awarding of compensation to the applicant. The court did not order reinstatement as the applicant had not requested it, but it did require the respondent to compensate the applicant for the unfair dismissal. This decision underscores the importance of following fair procedures in employment terminations and the need for employers to address performance issues before dismissing an employee.

Orders