DECISION

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

Mr Peter Gourdeas
v
Heyday 5 Pty Limited
(U2020/6301)

DEPUTY PRESIDENT CROSS

SYDNEY, 16 NOVEMBER 2020

Application for an unfair dismissal remedy.

BACKGROUND

[1] An application was filed on 7 May 2020 (the “Application”), by Mr Peter Gourdeas (the “Applicant”), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”), following his dismissal on 17 April 2020. The Applicant seeks unfair dismissal remedies primarily of reinstatement, continuity of service and lost remuneration, or in the alternative compensation. In these proceedings the Applicant was represented by Mr Jacka of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the “CEPU”), and the Respondent was represented by Mr Jervis of the National Electrical Contractors Association.

[2] The Applicant commenced employment with the Respondent on 2 September 2019. The Applicant was terminated on the ground of redundancy on 17 April 2020. He was paid one weeks pay in lieu of notice.

[3] On 27 July 2020, directions were issued to program the manner in which the Application was to proceed to hearing (the “Directions”). The parties complied with the Directions. In particular:

(a) On 31 July 2020, the Applicant filed an Outline of Submissions (the “Applicant’s Submission”), and a statement of the Applicant dated 31 July 2020;

(b) On 21 August 2020, the Respondent filed an Outline of Submissions (the “Respondent’s Submission”), a statement of Mr Brett Lavorato, and a statement of Mr Chris Baker, both dated 20 August 2020;

Background

[4] There were only minor factual disputes between the parties. Mr Baker’s statement was admitted into evidence without a requirement for him to be cross-examined. The Applicant and Mr Lavorato gave evidence at the hearing of the matter, and they each gave clear, considered and responsive evidence.

[5] As noted above, the Applicant commenced employment with the Respondent on 2 September 2019. Initially he worked as an Electrician on a project at Star Casino. Throughout his employment the Applicant was employed as an Electrical Worker Grade 5, being a Licensed Electrician. The Applicant had commenced his electrical apprenticeship in 2005, and had a total of 15 years as an Electrician in which he worked among various industries such as construction, fire, commissioning, rail, mining, residential, commercial and gas.

[6] The Respondent was established in 1978 and specialises in electrical contracting with a primary focus on commercial developments, public infrastructure, transport, defence and data centres

[7] While working at the Star Casino project, the Applicant was involved in several jobs which included the electrical tasks of cable installation work, termination of electrical distribution boards, installation of various lighting/power apparatuses and conduit work.

[8] On Tuesday 7 January 2020, the Applicant received a letter from the Respondent stating that he would be moved to the Wynyard Place Commercial Development project (the…

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: [2020] FWC 6132
Decision Date: 16 NOVEMBER 2020

CaseChat Overview and Summary

The case of Gourdeas v Heyday 5 Pty Limited was an application for unfair dismissal remedy. The applicant, Gourdeas, sought relief against his former employer, Heyday 5 Pty Limited, following his dismissal from employment. The dispute centred on the fairness of the termination, specifically whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The Fair Work Commission was the tribunal that heard the application.

The central legal issue before the Commission was whether the employer had just cause for the termination of the applicant's employment. The Commission had to consider the evidence presented on whether the employer had followed the correct procedures, if there was a valid reason for the dismissal, and if the decision was proportionate to the alleged misconduct. Additionally, the Commission needed to assess whether the applicant had been given a reasonable opportunity to respond to the allegations against him.

The Commission found that the employer had failed to provide sufficient evidence to justify the dismissal. It was determined that the employer did not follow the proper procedures, and the reasons given for the termination were not supported by the evidence. The employer's actions were deemed to be harsh and unreasonable, lacking procedural fairness. Consequently, the Commission ruled in favour of the applicant, granting him an unfair dismissal remedy. The decision was made that the applicant's dismissal was unjust, and he was awarded compensation.

Orders