Harish Kumar v Michael Lawler Transport Pty Ltd - [2024] FWC 1497

[2024] FWC 1497

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Harish Kumar
v

Michael Lawler Transport Pty Ltd

(U2023/12348)

DEPUTY PRESIDENT LAKE

BRISBANE, 25 JULY 2024

Application for an unfair dismissal remedy – jurisdictional objection – not dismissed – employer stopped providing shifts – jurisdictional objection dismissed – remedy for unfair dismissal – compensation awarded.

Mr Harish Kumar (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with Michael Lawler Transport Pty Ltd (the Respondent).

A conciliation was held on 22 March 2024 and the Respondent was not in attendance. The matter was listed for an in-person hearing on 22 April 2024. The Applicant was self-represented, and the Respondent was not in attendance.

Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act, earned less than the high-income threshold and that his dismissal was not a case of genuine redundancy.

The Respondent raised a jurisdictional objection that the Applicant was not dismissed and therefore not protected from unfair dismissal. I have identified that the Respondent is a small business where the Small Business Dismissal Code could apply. These matters will be determined before considering the merits of the Application.

Background and Procedural History

The Applicant commenced his employment with the Respondent from July 2022 as a Truck Driver.

On 20 November 2023, Mr Michael Lawler, Director of the Respondent, asked Mr Kumar to wash a truck. The Applicant responded that he washed the truck, but he would wash it again. The Applicant stated that he was asked to do an ‘acid wash’ on the truck, but was unable to do so because of heavy rainfall, and that the ‘acid’ would be slippery. The Applicant stated that he performed a ‘normal wash’.

On 21 November 2023, the Applicant received shifts to drive to Caboolture at 6:10am. Later that morning, the Applicant stated Mr Lawler called him and was told “not to come to work for a while.” At 2:24pm that day, the Applicant followed up with Mr Lawler regarding their phone call. Mr Kumar stated the following:

“I understand you are unhappy with me after not cleaning the truck, yet as I explained, the task was possible to complete under such heavy rainfall due to it being life-threatening. You know I always wish to do a good job to the best of my abilities, then go home to my family. All I can say is there’s a limit to how much I can risk for my job although you know I love my job… as I love being alive more. As a full-time employee whom has not received a formal warning in the past, please clearly state your intent for not asking me…

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: [2024] FWC 1497
Decision Date: 25 JULY 2024

CaseChat Overview and Summary

Harish Kumar made an application to the Fair Work Commission (FWC) seeking a remedy for unfair dismissal from his employment with Michael Lawler Transport Pty Ltd. Kumar alleged that he was dismissed without valid reason or process, and the employer failed to provide him with shifts since 21 November 2023. The FWC was required to decide whether Kumar was dismissed, whether the dismissal complied with the Small Business Fair Dismissal Code, and if the dismissal was harsh, unjust or unreasonable. The FWC found that Kumar was dismissed when the employer failed to provide him with shifts or respond to his inquiries. The employer did not provide a valid reason for the dismissal or follow the Small Business Fair Dismissal Code. The dismissal was harsh, unjust and unreasonable given Kumar had no opportunity to respond to any issues raised by the employer. The FWC ordered the employer to pay Kumar compensation of $27,280. The employer is required to pay the compensation amount within 30 calendar days of the decision date to Kumar’s nominated bank account.

The FWC considered the criteria for unfair dismissal set out in the Fair Work Act 2009. The FWC found that Kumar was dismissed when the employer failed to provide him with shifts and respond to his inquiries, terminating his employment. The employer did not provide a valid reason for the dismissal or follow the Small Business Fair Dismissal Code. The FWC found the dismissal was harsh, unjust and unreasonable given Kumar had no opportunity to respond to any issues raised by the employer. The FWC ordered compensation of $27,280 to be paid to Kumar within 30 calendar days of the decision date. The employer is required to pay the compensation amount to Kumar’s nominated bank account.

Orders