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Heran Building Group Pty Ltd v Anneveldt

Heran Building Group Pty Ltd v Anneveldt

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[2013] FWCFB 4744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

The Heran Building Group Pty Ltd
v
Eduard Anneveldt
(C2013/4296)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT SAMS
COMMISSIONER HAMPTON

MELBOURNE, 23 JULY 2013

Appeal against decision [[2013] FWC 2224] and order [PR535620] of Commissioner Cambridge on 18 April 2013 in matter number U2012/14491.

[1] This decision deals with an appeal by The Heran Building Group Pty Ltd (Heran) against a decision 1 and order2 of Commissioner Cambridge in respect of an unfair dismissal remedy application made by Mr Edward Anneveldt.

[2] In the decision the Commissioner stated the following by way of factual background:

“Factual Background

[5] The applicant had performed work for the employer as a contractor since about July 1988 and he became a direct employee of the employer in May 2007 Consequently the applicant’s period of service as an employee was about 5 years and 4 months. The applicant was engaged as a Construction Site Supervisor.

[6] The employer is a medium sized family business employing approximately 40 people. The employer operates a residential building/development Company based in South East Queensland. The employer is primarily controlled and managed by three brothers, Brian, Martin and Stephen Heran, who are Directors of the employer Company. A fourth brother, Glenn and a Shane Heran also have senior managerial roles in the employer’s business.

[7] In June 2011, the employer advised the applicant that his employment was terminated because of ‘... downturn in our business activity,...’. The applicant was given telephone and e-mail advice of the termination of employment from Mr Stuart Knock, the employer’s Accountant. The termination advice provided four weeks’ notice which meant that the applicant was to work until 20 July 2011. However, during this period of notice the employer reversed the decision to dismiss the applicant and he continued in employment up until 5 September 2012.

[8] On 5 September 2012, the applicant received telephone and e-mail advice from Mr Knock which provided five weeks notice of termination of employment. These communications from Mr Knock advised the applicant that he was dismissed on the basis of unsatisfactory performance and the e-mail included ten ‘reasons’ which related to the unsatisfactory performance.” [Endnotes omitted]

[3] Before the Commissioner there was no contest that Mr Anneveldt’s application was made within the requisite period, that Mr Anneveldt was dismissed and was protected from unfair dismissal, that Heran was not a small business within the meaning of the Fair Work Act 2009 (Cth) (FW Act) or that his dismissal was not a case of genuine redundancy. The Commissioner, therefore, turned to consider whether Mr Anneveldt’s dismissal by Heran was harsh, unjust or unreasonable.

[4] Section 387 of the FW Act provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to…

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] FWCFB 4744
Decision Date: 23 JULY 2013

CaseChat Overview and Summary

Heran Building Group Pty Ltd, the appellant, sought to appeal against the decision and order of Commissioner Cambridge in the Fair Work Commission (FWC) dated 18 April 2013. The matter, originally filed under number U2012/14491, involved a dispute concerning the employment terms and conditions of an employee, Anneveldt. The central issue was whether the Fair Work Act's provisions on general protections against adverse action applied to the termination of Anneveldt’s employment by the respondent, Heran Building Group.

The court was tasked with determining whether the termination of Anneveldt’s employment was an adverse action as defined under the Fair Work Act, and if so, whether the action was taken for a reason connected to the provisions of the Act. Furthermore, the court needed to consider whether the decision of the Commissioner was legally sound and whether any errors were made that warranted an appeal. The primary legal issues revolved around the interpretation of the Act’s provisions concerning adverse action and the applicability of these provisions to the specific facts of the case.

In examining the matter, the court assessed the Commissioner's interpretation of the Fair Work Act and the evidence presented. It was determined that the Commissioner had correctly applied the relevant provisions of the Act. The court found that there was no basis to conclude that the termination of Anneveldt’s employment was an adverse action under the Act, and thus the Commissioner’s decision was affirmed. The appeal was dismissed with no orders for costs.

Orders