Heath Stephenson v Patties Foods Ltd

[2015] FWC 5781

[2015] FWC 5781[Note: An appeal pursuant to s.604 (C2015/6017) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Heath Stephenson
v
Patties Foods Ltd
(U2015/5060)

COMMISSIONER RYAN MELBOURNE, 20 AUGUST 2015

Application for relief from unfair dismissal Application for relief from unfair dismissal.

[1] The Applicant filed an unfair dismissal application with the Commission on 21 April 2015 in relation to the termination of his employment on 2 April 2015.

[2] The application was subject to a hearing on 14 and 15 July 2015 at Bairnsdale and a hearing on 20 August 2015 at Melbourne. Permission was granted by the Commission for each of the Applicant and the Respondent to be represented by a solicitor or paid agent. At the hearing the Applicant was represented by Mr G Dircks and the Respondent was represented by Ms A Forsyth of counsel.

[3] Before considering the merits of the application in this matter the Commission is required to be satisfied as to certain preliminary matter set out in s.396. The Respondent has made certain admissions in relation to the matters set out in s.396.

[4] The Commission finds that the application in this matter was made within the time frame set out in s.394(2)(a).

[5] The Commission finds that the Applicant was dismissed within the meaning of s.386.

[6] The Commission finds that the Applicant was protected from unfair dismissal within the meaning of s.382.

[7] The Commission finds that the Respondent was not a small business employer at the time of the dismissal and therefore the Small Business Fair Dismissal Code does not apply.

[8] The Commission finds that dismissal was not a case of a genuine redundancy.

[9] The Commission is satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable within the meaning of s.387.

[10] The Commission finds that the Applicant was unfairly dismissed within the meaning of s.385.

[11] The Commission considers that it is appropriate to grant a remedy to the Applicant in relation to the unfair dismissal.

[12] The Commission considers that the primary remedy of reinstatement should be granted to the Applicant. The Commission will issue an order that the Respondent reinstate the Applicant to the position he was employed in immediately before the dismissal.

[13] The Commission considers that it is appropriate to, and will, make an order to maintain the continuity of the Applicant’s employment.

[14] The Commission considers that it is appropriate to, and will, make an order to cause the employer to pay to the Applicant an amount for the remuneration lost or likely to have been lost by the Applicant because of the dismissal.

[15] The Commission intends to issue written reasons for its decision at a later date.

[16] The orders for reinstatement, maintaining continuity of service and restoration of lost pay will be issued at the same time as the written reasons for decision are issued and each order will be expressed to commence 22 days after the date of issue.

COMMISSIONER

Appearances:

G. Dircks on behalf of the applicant.

A. Forsyth of counsel on behalf of the respondent.

Hearing details:

2015.

Bairnsdale:

July 14, 15.

Melbourne:

August 20.

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