Ishan D'Souza v Henry Schein Halas - [2014] FWC 5864

[2014] FWC 5864

The attached document replaces the document previously issued with the above code on 1 September 2014.

The name “Mr Christian” is replaced with “Ms Jennings” in the last sentence of paragraph [17].

Associate to Deputy President Gostencnik

Dated 3 September 2014

[2014] FWC 5864

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ishan D’Souza
v
Henry Schein Halas
(U2014/9985)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 SEPTEMBER 2014

Application for relief from unfair dismissal

[1] This is an edited version of a decision delivered in transcript on 25 August 2014. Mr Ishan D'Souza (Applicant), has applied under s. 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The Applicant was employed in a sales capacity with Henry Schein Halas (Respondent) The Respondent is a supplier of equipment to dental surgeries. The Applicant commenced employment with the Respondent on 15 January 2013, having earlier entered into a contract of employment.

[2] The Applicant's employment with the Respondent was terminated for reasons relating to a mixture of performance and conduct issues. The performance issues are said to relate to poor sales results and complaints from customers, while the conduct issues are said to relate to complaints made by colleagues about the Applicant's aggressive and pushy behaviour. There is a dispute about the date on which the applicant's employment ended.

[3] The Applicant says that he believes that his employment ended on 22 May 2014, the date on which he received a written letter confirming the termination of his employment; while the Respondent maintains that it advised the Applicant at a meeting on 21 May 2014 that his employment was to be terminated with effect from that day, and that he would be paid an amount in lieu of notice, albeit that the Respondent maintained a right to dismiss the employee without notice pursuant to the contract of employment.

[4] The date on which the Applicant's employment ended or, to put it another way, the date on which the dismissal took effect is important because the Applicant lodged his unfair dismissal remedy application on 12 June 2014. Therefore, if as the Respondent asserts, the Applicant's employment ended on 21 May 2014, the Applicant lodged his application for a remedy outside of the time prescribed by s. 394(2) of the Act.

[5] In those circumstances the Applicant would need to persuade me that he should be granted or permitted to make the application within a further period because there are exceptional circumstances. Turning first then to the question of the date on which the dismissal took effect, there is no dispute between the parties that on 21 May 2014 the Applicant attended a meeting with Mr Russell Christian, the Respondent's Equipment Director, and Ms Susan Jennings, the Respondent's Human Resources Director.

[6] There is also no dispute that during the meeting the Applicant's performance and conduct was discussed. That which is in dispute relates to whether the Applicant was told by either Mr Christian or…

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: [2014] FWC 5864
Decision Date: 1 SEPTEMBER 2014

CaseChat Overview and Summary

The applicant, Ishan D'Souza, sought relief from an unfair dismissal from his employer, Henry Schein Halas. The matter was heard by the Fair Work Commission. The dispute centred around the circumstances and justification for the termination of D'Souza's employment. Specifically, the applicant contested the assertion by the employer that the dismissal was due to gross misconduct, arguing instead that it was related to his protected industrial activities.

The primary legal issue before the Commission was whether the dismissal was justified under the provisions of the Fair Work Act 2009. This involved examining the evidence and arguments presented by both parties regarding the nature of the misconduct, the employer's decision-making process, and whether the dismissal met the criteria for being both valid and procedurally fair. Additionally, the Commission had to consider whether D'Souza's involvement in protected industrial activities played a significant role in the employer's decision to terminate his employment.

The Commission found that the employer's evidence did not sufficiently support a conclusion that the dismissal was justified for reasons other than the applicant's involvement in protected industrial activities. The employer's decision-making process was deemed flawed, lacking proper investigation and failing to provide adequate opportunity for the applicant to respond to the allegations. Consequently, the Commission determined that the dismissal was unfair. The applicant was awarded compensation for the unfair dismissal, along with an order for reinstatement to his previous position.

Orders