Gregory Lloyd v Alexander M Pty Ltd - [2013] FWC 7026

[2013] FWC 7026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Lloyd
v
Alexander M Pty Ltd
(U2013/1334)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 18 SEPTEMBER 2013

Application for an unfair dismissal remedy - abandonment of employment - alleged overpayment - application dismissed.

[1] On 24 April 2013 Mr.Gregory Lloyd lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (‘the Act’).

[2] The matter was conciliated and no settlement was reached.

[3] The case was conducted by hearing pursuant to ss.398-399 1. Pursuant to s.596(1)(a) I granted permission for the parties to be represented by a lawyer, because it would enable the matter to be dealt with more efficiently, given the complexity of the matter. Unfortunately the case was marked by extensive conflict between the two legal representatives about the form of questions asked by counsel for the employer during the leading of evidence, and the admissibility of evidence.

[4] The employer submitted that the applicant abandoned his employment, and that there was no dismissal within ss.385, 386, and 394(1). The applicant submitted that he was dismissed. There is no disagreement that if there was a dismissal, that the Small Business Fair Dismissal Code applied and was not followed, and that the dismissal is harsh, unjust or unreasonable. However, the employer submits that an amount of 9 weeks’ pay was overpaid to the applicant, and this should be taken into account and reduce the amount of compensation payable to the applicant.

Abandonment of Employment

[5] Mr.Stefano Tartaria gave evidence that he attended the premises of Comfort Furniture in Melbourne, which was run by Mr.Lloyd as manager, in order to review the management and conduct of the store’s operations. He said that the business ran at a considerable financial loss. He asked Mr.Lloyd a number of questions about:

● the apparent overpayment of his wages/salary;

● his attendance on the premises;

● the use of company floor space and delivery systems for the sale and delivery of third-party furniture without any apparent financial benefit flowing to the employer, or indeed the knowledge of the employer; and,

● the nature of certain documents.

[6] He said that Mr.Lloyd asked for a few days in order to clear his name. He agreed to this. Mr.Lloyd left the premises and never contacted him or the company at all, let alone provided an explanation or answer with respect to each of the above issues. He tried to contact Mr.Lloyd on several occasions but he did not answer his company mobile phone. Mr.Lloyd continued to have the business mobile phone during that period. He left messages, and no messages were ever returned 2. When the phone was returned two days later the employer tried to contact him through other means but ‘He just disappeared’3.

[7] Mr.Lloyd gave evidence that he was accused of colluding with Mr.Kent to receive overpayments, and that ‘we want to finish you up right now’. He demanded the keys to the vehicle and store,…

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.

Continue reading Gregory Lloyd v Alexander M Pty Ltd

Details

AGLC: Gregory Lloyd v Alexander M Pty Ltd [2013] FWC 7026
Case: [2013] FWC 7026
Decision Date: 18 SEPTEMBER 2013

CaseChat Overview and Summary

Gregory Lloyd applied to the Fair Work Commission for an unfair dismissal remedy against Alexander M Pty Ltd. Lloyd alleged that he was dismissed without just cause or excuse, while the respondent company argued that the dismissal was justified due to Lloyd's abandonment of his employment and an alleged overpayment. The Fair Work Commission was tasked with determining whether Lloyd's dismissal was unfair and, if so, what remedy should be granted.

The primary legal issue before the Commission was whether Lloyd's dismissal was justified due to his abandonment of employment, as claimed by Alexander M Pty Ltd. Additionally, the Commission needed to assess whether the alleged overpayment by the respondent constituted a valid reason for dismissal. The Commission also considered whether Lloyd's dismissal was harsh, unjust, or unreasonable, thereby rendering it unfair.

In its decision, the Fair Work Commission found that Lloyd had effectively abandoned his employment by ceasing to attend work and failing to respond to the company's attempts to contact him. This conduct, according to the Commission, provided a valid reason for dismissal. Furthermore, the Commission determined that the alleged overpayment did not constitute a reasonable ground for dismissal, as it was not the primary reason for terminating Lloyd's employment. However, given that the respondent had a just cause for dismissal based on abandonment, the application for an unfair dismissal remedy was dismissed.

The Fair Work Commission did not grant any remedy to Lloyd, concluding that the dismissal was not unfair given the circumstances. The Commission emphasised that the respondent had acted reasonably in terminating Lloyd's employment due to his abandonment, despite the issue of overpayment.

Orders