Glenn Gardner v Milka-Ware International Ltd - [2010] FWA 1589

[2010] FWA 1589

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Glenn Gardner
v
Milka-Ware International Ltd
(U2009/13800)

COMMISSIONER GOOLEY

MELBOURNE, 25 FEBRUARY 2010

Termination of employment – jurisdiction – national system employer.

[1] This decision relates to an application by Mr Glenn Gardner under s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of his employment by Milka-Ware International Ltd (MW International) was harsh, unjust or unreasonable. The application was made on 16 November 2009.

[2] MW International filed a Form F3 – Employer’s Response to Application for Unfair Dismissal Remedy – in which it advised that there was a jurisdictional objection to the application. It stated that because MW International was a New Zealand Registered, Directed and Owned Company; traded in New Zealand only; employed Mr Gardner in New Zealand and paid Mr Gardner in New Zealand dollars into Mr Gardner’s New Zealand bank account, Fair Work Australia did not have the jurisdiction to hear the application and it should be dismissed.

[3] The matter was initially set down for conciliation on 3 December 2009 but this was cancelled in light of the advice of MW International that it would not attend such conciliation due to its jurisdictional objection. Directions for the filing of material were issued on 10 December 2009.

[4] MW International was directed to file with Fair Work Australia and serve on the applicant an outline of submissions and any witness statements and documentary material it intended relying on by 21 December 2009. No material was filed by MW International.

[5] On 13 January 2010, in compliance with the directions, Mr Gardner filed and served an outline of submissions and a statement of Mr Gardner.

[6] During the proceedings Mr Ludbrook, of counsel, represented Mr Gardner and Mr Doak, the Chief Executive Officer of MW International, represented MW International. The matter was heard on 12 February 2010. Mr Doak did not call any witnesses in the proceeding. Documentary evidence was tendered by Mr Doak without objection.

[7] Mr Gardner gave evidence and was not cross examined by Mr Doak. Mr Doak objected to parts of Mr Gardner’s evidence on the basis of relevance. The evidence was admitted subject to his objection which I propose to deal with in this decision.

[8] Some correspondence had been forwarded to Fair Work Australia by Mr Gardner’s legal representative prior to the hearing which had raised the question of who was Mr Gardner’s employer and in his submissions and statements Mr Gardner made reference to Milka-Ware (Australia) Pty Ltd as Mr Gardner’s employer. No application was made to amend the name of the employer and it was accepted by all parties that Mr Gardner was employed by MW International who was named in the original application.

Background

[9] Mr Gardner was initially employed by Milka-Ware (Australia) Pty Ltd in November 2004 as the Product Manager: Electronics/Herd Management 1. At some time before Mr Gardner commenced employment with…

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: [2010] FWA 1589
Decision Date: 25 FEBRUARY 2010

CaseChat Overview and Summary

Glenn Gardner, an employee, brought a case against Milka-Ware International Ltd, his employer, seeking remedies for alleged unfair termination of employment. The Federal Circuit Court was tasked with deciding the jurisdictional and substantive issues arising from this claim. The primary legal issues included whether the court had jurisdiction to hear the matter and whether the employer's actions constituted unfair dismissal under the Fair Work Act 2009.

The court first considered whether it had jurisdiction to hear the case, given that Milka-Ware International Ltd was classified as a national system employer. Under the Fair Work Act, such employers are subject to federal industrial relations laws. The court found that it had the requisite jurisdiction to hear the matter as the dispute involved a national system employer and the termination of employment was a matter that fell under the Act. The court then examined the substantive issue of whether the termination was unfair. It considered the reasons for termination provided by the employer and whether these met the legal criteria for fair dismissal. The employer argued that the dismissal was for genuine operational reasons and not based on discriminatory or retaliatory motives.

After evaluating the evidence and arguments presented, the court concluded that the termination was unfair. The reasons provided by the employer did not meet the legal standards for fair dismissal, as they did not address the employee's entitlements and did not follow a fair process. Consequently, the court found in favour of Glenn Gardner. The final orders included a determination that the termination was unfair and an award of compensation to the employee, reflecting lost wages and other entitlements.

Orders