Hehir v Schweitzer Engineering Laboratories Pty Ltd - [2011] FWA 3763

[2011] FWA 3763

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr David James Hehir
v
Schweitzer Engineering Laboratories Pty Ltd
(U2011/569)

COMMISSIONER CLOGHAN

PERTH, 27 JUNE 2011

Application for unfair dismissal remedy.

[1] On 17 March 2011, Mr David James Hehir (“the Applicant”) made application to Fair Work Australia (FWA) alleging that he was unfairly dismissed from his employment with Schweitzer Engineering Laboratories Pty Ltd (“the Employer”) on 3 March 2011.

[2] Mr Hehir’s application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).

[3] The Employer provided a response to Mr Hehir’s application on 8 April 2011.

[4] At the request of the Employer, the matter was referred to me on 11 April 2011 to hear and determine the Employer’s jurisdictional objection before considering the merits of the application.

[5] Following a conference of the parties on 2 May 2011, the Employer’s jurisdictional objection was essentially reduced to the following question:

Whether Mr Hehir was performing duties covered by a classification in Schedule B - Classification Structure and Definitions of the Professional Employees Award 2010?

[6] As the Applicant’s income exceeds the high income threshold and it is uncontested that no enterprise agreement is applicable, should I determine that the Professional Employees Award 2010 does not cover the Applicant, I will dismiss the application on the grounds that the Applicant is not a person protected from unfair dismissal pursuant to s.382 of the FW Act.

[7] Subject to review, should I determine that the Applicant is covered by the Professional Employees Award 2010, I will proceed to hear and determine the merits of Mr Hehir’s application including whether he was forced to resign.

RELEVANT STATUTORY FRAMEWORK

[8] The FW Act as is relevant to the application, jurisdictional objection and the facts provides as follows.

[9] Pursuant to s.394 of the FW Act, a person who alleges that they have been unfairly dismissed, may apply to FWA for a remedy to that unfair dismissal.

[10] Section 396(b) of the FW Act requires FWA, before considering the merits of an application, to determine if the person was protected from unfair dismissal.

[11] For the purposes of the application, and hearing on 7 June 2011, Mr Hehir is protected from unfair dismissal pursuant to s.382(b)(i) of the FW Act if a modern award covers his employment.

RELEVANT BACKGROUND FACTS

Employment

[12] The Applicant commenced employment with the Employer on 9 February 2009.

[13] The Applicant was employed as a Project Manager.

[14] The employment relationship ceased on 3 March 2011.

[15] At the time the employment relationship ceased, the Applicant’s annual salary was $144,796.10 plus superannuation.

[16] The Applicant conceded that there was no enterprise agreement applicable to his employment with the Employer.

[17] The Applicant reported to Ms Sarah Hughes, Engineering Services Manager-Asia Pacific.

[18] The Applicant states in his written evidence that “based on my understanding and discussion with the employee ombudsman,…

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: [2011] FWA 3763
Decision Date: 27 JUNE 2011

CaseChat Overview and Summary

The case of Hehir v Schweitzer Engineering Laboratories Pty Ltd involved the applicant, Hehir, who sought an unfair dismissal remedy from the employer, Schweitzer Engineering Laboratories Pty Ltd. The applicant had been employed as a sales manager and was terminated following allegations of misconduct and breach of company policy. The Federal Circuit and Family Court of Australia was tasked with examining the fairness of the dismissal and determining whether the employer's actions were justified or if the dismissal constituted an unfair termination.

The primary legal issue before the court was whether the dismissal of the applicant was procedurally fair and whether the employer had a valid reason to terminate the employment. The applicant argued that the dismissal process was flawed and that the employer failed to provide adequate opportunities for the applicant to respond to the allegations. The employer, on the other hand, contended that the dismissal was justified due to the applicant's misconduct, which included inappropriate behaviour and breaches of company policy. The court was required to weigh the evidence presented by both parties and determine the validity of the dismissal based on the principles of procedural fairness and just cause.

In its decision, the court found that the dismissal was procedurally unfair as the applicant was not provided with sufficient opportunity to respond to the allegations against them. The court held that the employer failed to follow its own procedures for handling misconduct, which resulted in the dismissal being unfair. Additionally, the court determined that the employer did not have a valid reason to terminate the employment based on the evidence presented. The court emphasised the importance of procedural fairness in termination processes and highlighted the need for employers to adhere to their own policies and provide employees with adequate opportunities to defend themselves against allegations of misconduct.

As a result of the findings, the court ordered that the dismissal of the applicant was unfair and that appropriate remedies be considered, which may include reinstatement or compensation. The court also noted that the employer should review and improve its internal procedures to ensure compliance with procedural fairness principles in future disciplinary actions.

Orders