Ivo Pasalic v Technometal Pty Limited - [2012] FWA 8136

[2012] FWA 8136

FAIR WORK AUSTRALIA

DECISION

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

Ivo Pasalic
v
Technometal Pty Limited
(U2011/13765)

DEPUTY PRESIDENT SAMS

SYDNEY, 9 OCTOBER 2012

Unfair dismissal - jurisdiction - employed for a specified task - poor performance - allegations of misconduct - denial of procedural fairness - dismissal unfair - reinstatement not appropriate - compensation ordered.

BACKGROUND

[1] This decision will determine an application, filed by Mr Ivo Pasalic (‘the applicant’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which he seeks an order from Fair Work Australia (FWA) for an unfair dismissal remedy arising from his dismissal on 3 November 2011 by Technometal Pty Ltd (‘the respondent’). The applicant had been employed for just over six years as a designer / drawer for the respondent; a manufacturer of automatic packaging machinery in Ingleburn, NSW. The respondent’s Managing Director is Mr Marius Togi. Mr Togi and the applicant were the only persons who gave evidence in this case.

[2] There has been some delay in this matter being listed for final arbitration before the Tribunal as presently constituted. This was so because the respondent had initially objected to the application being accepted by FWA on jurisdictional grounds; namely, it was said that the applicant was an independent contractor and not an employee, and therefore not a person able to make an application for a remedy for unfair dismissal under Part 3-2 of the Act. That jurisdictional issue was subsequently heard and determined in the applicant’s favour, by His Honour Watson, VP on 20 April 2012; See: Pasalic v Technometal Pty Ltd[2012] FWA 3291.

[3] At the hearing of the application on 3 September 2012, the applicant was represented by Ms J Prats, Solicitor and Mr R Aslanian and the respondent was represented by Mr S O’Brien of Counsel instructed by Mr M Donovan. Both legal representatives were granted permission to appear. At the outset of the proceedings, I inquired of the parties as to their views as to whether the matter should proceed by way of hearing or conference; (s 399 of the Act). Both parties indicated a preference to proceed to a hearing and I adopted that course.

[4] At the commencement of proceedings, Mr O’Brien informed the Tribunal and the other party, for the first time, that the respondent intended to invoke another jurisdictional objection to the application proceeding; namely, that the applicant had not been dismissed because he ‘was employed under a contract of employment for a specified period of time, for a specified task, or for a specified reason and the employment has terminated at the end of the period, on completion of the task or at the end of the season’ (s 386(2)(a) of the Act) (my emphasis). I shall return later to consider this objection; suffice to say at this point, that I made it clear to Mr O’Brien that I was less than impressed with the…

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: [2012] FWA 8136
Decision Date: 9 OCTOBER 2012

CaseChat Overview and Summary

The case of Ivo Pasalic versus Technometal Pty Limited involved a dispute regarding an employee's dismissal. The applicant, Mr Pasalic, sought to challenge his dismissal by the respondent company, contending it was unfair. The matter was heard in the Fair Work Commission. The crux of the dispute lay in whether Mr Pasalic's dismissal was justified, particularly in light of the circumstances surrounding his employment, which was for a specific task, and the subsequent allegations of poor performance and misconduct. Mr Pasalic also argued that he was not afforded procedural fairness during the dismissal process.

The legal issues before the Commission encompassed the validity of the dismissal under the Fair Work Act, whether the dismissal was for poor performance or misconduct, and whether procedural fairness was observed. Specifically, the Commission had to consider whether the respondent had a valid reason to dismiss Mr Pasalic and whether the process followed was fair. The Commission also needed to determine if the dismissal was harsh, unjust, or unreasonable, and whether any remedy, including reinstatement or compensation, was appropriate.

In its decision, the Commission found that the dismissal was indeed unfair, primarily due to the lack of procedural fairness. It was determined that the respondent did not adequately address the allegations of misconduct against Mr Pasalic, nor did it provide him with a reasonable opportunity to respond to the claims. Consequently, the Commission ruled that while reinstatement was not appropriate, the applicant was entitled to compensation. The Commission assessed the compensation based on the loss of earnings and other entitlements Mr Pasalic would have received had his employment continued. The final orders included the respondent paying the applicant a sum of money as compensation for the unfair dismissal.

Orders