[2015] FWC 6422

The attached document replaces the document previously issued with the above code on 28 October 2015.

References at paragraphs [31], [38] and [40] to other paragraphs within this decision have been corrected.

Edrea Tio

Associate to Senior Deputy President Hamberger

Dated 2 November 2015

[2015] FWC 6422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Deeth
v
Milly Hill Pty Ltd
(U2014/15784)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 28 OCTOBER 2015

Application for relief from unfair dismissal – criminal charges – dismissal inconsistent with Small Business Fair Dismissal Code – valid reason for dismissal but pre-dismissal process deficient – dismissal harsh and unjust but not unreasonable – reinstatement not appropriate – compensation ordered.

[1] Mr James Deeth has applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Milly Hill Pty Ltd (Milly Hill).

Jurisdictional issue: extension of time

[2] Milly Hill summarily dismissed Mr Deeth on 26 September 2014. He lodged this application for an unfair dismissal remedy on 4 December 2014, more than 21 days after his dismissal took effect. It was therefore outside the default timeframe for lodgement prescribed by s.394(2)(a) of the Act. On 31 March 2015, Commissioner Roberts decided 1 that “exceptional circumstances” existed and therefore ordered an extension of time to allow Mr Deeth to validly apply.2

The substantive hearing

[3] The substantive hearing of this matter was held on 10 September 2015. With permission, Mr Deeth was represented by Mr Hannaway, solicitor, and Milly Hill was represented by Ms Coupland, solicitor.

[4] Mr Deeth tendered:

● the witness statement of Sharon Deeth, his mother; 3

● his own witness statement; 4

● the witness statement of Mark Deeth, his father; 5

● his PAYG payment summary from Milly Hill for the year ending 30 June 2015; 6 and

● his PAYG payment summary from Centrelink for the year ending 30 June 2015. 7

[5] Milly Hill tendered:

● the witness statement of Aidan Davey, an employee at Milly Hill’s retail butcher store; 8

● the witness statement of Debra Farrell, proprietor of a pottery business (“The Mud Shack”) on neighbouring premises to Milly Hill’s retail butcher store; 9

● the witness statement of Shayne Scafidi, a butcher at Milly Hill’s retail butcher store and Mr Deeth’s manager at the front of the store before his dismissal; 10

● a bundle of documents titled “List of Appendices”, relevantly comprising media statements (newspaper articles, etc.) relating to Mr Deeth and paperwork relating to Mr Deeth’s apprenticeship; 11 and

● copies of Mr Deeth’s pay slips from 30 August 2014 to the end of his employment. 12

[6] Mr Peter Strelitz, director of Milly Hill, also gave evidence at the hearing. 13 All the witnesses except Mrs Deeth were cross-examined.

[7] The issue of Mr Jamie Latham’s absence arose at the hearing. Mr Latham was the manager of the retail butcher store at which Mr Deeth worked before his dismissal.…

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.

Continue reading James Deeth v Milly Hill Pty Ltd

Details

AGLC: James Deeth v Milly Hill Pty Ltd [2015] FWC 6422
Case: [2015] FWC 6422
Decision Date: 28 OCTOBER 2015

CaseChat Overview and Summary

James Deeth brought an application for relief from his dismissal against Milly Hill Pty Ltd in the Fair Work Commission. The dispute centred around the fairness of Deeth's termination, specifically whether it complied with the Small Business Fair Dismissal Code and whether the dismissal was harsh, unjust, or unreasonable. The matter was heard and determined by Commissioner Wilson.

The key legal issues were whether Deeth's dismissal was justified on valid grounds, whether the dismissal process was followed correctly, and whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The primary contention was that Deeth was dismissed due to criminal charges against him, but the employer failed to follow proper procedures before the dismissal.

Commissioner Wilson concluded that while the dismissal was justified on valid grounds, the pre-dismissal process was deficient. The dismissal was deemed harsh and unjust due to the procedural shortcomings, but not unreasonable because the employer had a valid reason for dismissing Deeth. Consequently, while reinstatement was not deemed appropriate, compensation was ordered in lieu of reinstatement. The Commission found the employer liable to pay Deeth compensation in the sum of $14,000.

Orders