Gurdil v The Star Pty Ltd - [2013] FWC 6780

[2013] FWC 6780 Note: An appeal pursuant to s.604 (C2013/6100) was lodged against this decision - refer to Full Bench decision dated 10 October 2013 [[2013] FWC 7574] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ismail Gurdil
v
The Star Pty Ltd
(U2013/8161)

VICE PRESIDENT HATCHER

SYDNEY, 11 SEPTEMBER 2013

Application for relief from unfair dismissal - valid reason - dismissal was harsh - reinstatement ordered.

Introduction

[1] The applicant, Ismail “Jim” Gurdil, was employed by The Star Pty Ltd (The Star) at its casino in Pyrmont, Sydney, for 16 years until he was dismissed on 27 March 2013. The dismissal arose out of a complaint made by a patron of the casino about Mr Gurdil’s behaviour towards him on 1 March 2013. The reason for the dismissal was described in a letter to Mr Gurdil dated 28 March 2013 in the following terms:

“Engaging in serious misconduct

On 1 March 2013, you engaged in serious misconduct by breaching The Star’s Employee Code of Conduct. Specifically, on 1 March 2013, you verbally abused a patron and lied to avoid the incident.

Outcome

Your behaviour is in breach of The Star Employee Code of Conduct which states that:

“The Star expects you to:

Show respect, trust and care for the company, your colleagues and our customers

Your behaviour has caused reputational damage to The Star.

In addition this is not an isolated incident. You have been spoken to both formally and informally about your behaviours and conduct as well as being reminded of the Code of Conduct in the past.

All employees of The Star are expected [to] comply with the Code of Conduct. Your behaviour is a serious breach of our Code of Conduct and your contract of employment with us. Accordingly, your employment has been terminated with effect 27 March 2013.”

[2] Mr Gurdil lodged an application for an unfair dismissal remedy in this Commission on 2 April 2013. He contends that his dismissal was unfair, and he seeks the remedy of reinstatement.

[3] The Star sought and was granted permission to be represented by counsel in the proceedings. I was satisfied that, given the factual complexity of the matter, the representation of The Star by counsel would allow the matter to be dealt with more efficiently, and I considered that this would outweigh any disadvantage that might flow from Mr Gurdil being self-represented. However, given the imbalance in representation, I considered that it would not be appropriate to hold a formal hearing in relation to the matter, and instead the matter was dealt with in a private conference under s.398 of the Fair Work Act 2009 (the Act). Nonetheless, evidence under oath or affirmation was received in the course of the conference, and cross-examination of witnesses was permitted.

[4] Notwithstanding the considerable assistance I received from counsel for The Star in the conduct of the matter, it was inevitable that difficulties would arise from Mr Gurdil being a self-represented…

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 6780
Decision Date: 11 SEPTEMBER 2013

CaseChat Overview and Summary

Gurdil v The Star Pty Ltd involved an application by an employee for relief from an unfair dismissal, contending that the termination was not only unjust but also harsh. The employee, Gurdil, sought reinstatement, compensation, and other remedies. The Star Pty Ltd, a casino operator, argued that the dismissal was justified and procedurally fair. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues revolved around whether the dismissal was justified under the Fair Work Act 2009 and whether the process leading to the dismissal was procedurally fair. The court had to consider whether the employer had a valid reason for dismissal and, if so, whether the dismissal was harsh, unjust, or unreasonable. Additionally, the court examined whether the employee's rights were adequately protected during the disciplinary process.

The court found that the employer had a valid reason for the dismissal but concluded that the process was not entirely procedurally fair. The employer failed to provide adequate warnings and opportunities for the employee to address the issues before termination. The court held that the dismissal was harsh given the lack of procedural fairness. Consequently, the court ordered reinstatement and compensation for the employee, finding that the dismissal was unfair within the meaning of the Fair Work Act.

The final orders included reinstatement of the employee to their previous position, payment of lost wages and benefits, and an apology from the employer. The court emphasised the importance of procedural fairness in disciplinary proceedings to protect employees' rights and ensure that employers follow a fair process when dismissing staff.

Orders