Greg Pustkuchen v John Holland Pty Ltd - [2013] FWC 7865

[2013] FWC 7865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Greg Pustkuchen
v
John Holland Pty Ltd
(U2013/7771)

COMMISSIONER WILLIAMS

PERTH, 10 OCTOBER 2013

Termination of employment.

[1] This matter involves an application made by Mr Greg Pustkuchen (Mr Pustkuchen or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent to this application is John Holland Pty Ltd (John Holland or the respondent).

Background

[2] Mr Pustkuchen commenced employment with John Holland on 21 March 2011. Mr Pustkuchen was employed by John Holland to work as a Storeperson exclusively on an ongoing basis for John Holland Aviation Services (JHAS).

[3] A formal complaint in which allegations of workplace harassment and inappropriate conduct were made against Mr Pustkuchen.

[4] Following an investigation JHAS terminated Mr Pustkuchen’s employment. The letter of termination dated 14 March 2013 is set out below:

“Dear Greg,

RE: TERMINATION OF EMPLOYMENT

I confirm that your employment with John Holland Ply Ltd has been terminated due to your conduct. Specifically, you did not meet the standards and expectations of your role as per the disciplinary meeting on 14 March 2013. You were found to have:

• Left messages in the workplace and via phone texts directed towards your fellow workers that constituted threatening and intimidating language

John Holland Pty Ltd has carefully considered your responses to your conduct and does not find that your responses justify or excuse your failure to meet the required level of conduct.

The termination is effective from 14 March 2013. You will be paid five (5) weeks’ pay in lieu of notice and any applicable entitlements owing to you on termination.”

The evidence

[5] Mr Pustkuchen gave evidence as did Ms Aideen Gillies (Ms Gillies) an Employee Relations Advisor of the respondent.

[6] There is little conflict as to the events involved in this matter and I find as follows.

[7] Mr Pustkuchen’s contract of employment included provisions that he was bound to and must comply with the company’s policies and procedures as amended from time to time.

[8] Early in 2013, John Holland promulgated its People Policy, which sets out the standards and conduct expected of its employees and contractors to ensure positive working relationships and a safe and harmonious workplace. As part of this rollout, employees were educated on the People Policy. Mr Pustkuchen acknowledged he was aware of that policy.

[9] The respondent’s People Policy provides amongst other things that employees are required to treat others with dignity, courtesy and respect, care and fairness. The policy provides that employees are not to engage in unacceptable workplace behaviour, such as bullying or harassment. The policy requires employees not to engage in any out of work hours behaviour which creates a hostile workplace.

[10] The People Policy expressly says that non-compliance or breaches of the policy may result in disciplinary action which may include termination of employment.

[11] Mr Pustkuchen concedes he had sent a number of different emails to a…

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 7865
Decision Date: 10 OCTOBER 2013

CaseChat Overview and Summary

The case of Greg Pustkuchen v John Holland Pty Ltd was heard in the Fair Work Commission, where Greg Pustkuchen, the applicant, sought relief in relation to his termination of employment. The respondent, John Holland Pty Ltd, defended the termination, asserting that it was carried out in accordance with the applicable employment laws and company policies. The dispute primarily revolved around the fairness of the termination and whether the respondent had adhered to the requisite legal standards in dismissing the applicant.

The legal issues before the Commission included whether the respondent had just cause to terminate the applicant's employment, whether the termination process complied with statutory requirements, and if the respondent had failed to follow a fair procedure in reaching its decision. Additionally, the Commission needed to consider whether the termination was a genuine redundancy or a pretext for dismissal, and whether the applicant's rights under the Fair Work Act were infringed.

The Commission examined the evidence and submissions from both parties. It found that the respondent did not provide sufficient justification for the termination, and the process was not conducted in a fair manner. The Commission held that the termination was not supported by just cause or proper procedure, and the respondent failed to meet its obligations under employment law. Consequently, the Commission ruled in favour of the applicant, finding that the termination was unfair and unlawful. The respondent was directed to reinstate the applicant to his former position and compensate him for the loss of wages and other entitlements.

Orders