DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Henshaw
v
Echuca Productions Pty Ltd T/A Riverside Meats
(U2021/3861)

COMMISSIONER BISSETT

MELBOURNE, 30 JULY 2021

Application for an unfair dismissal remedy.

[1] On 6 May 2021 Mr James Henshaw (Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 seeking relief from unfair dismissal. He was employed by Echuca Productions Pty Ltd T/A Riverside Meats (Respondent).

[2] The application was subject to conciliation before a staff conciliator on 25 May 2021. Commission records indicate that the Applicant and his representative attended the conciliation as did Mr Chris Peat of the Respondent. Those records also indicate that the matter was settled on 1 June 2021 and a letter to this effect was sent to the parties by the conciliator on 15 June 2021 (although the reason for delay in the correspondence is not clear).

[3] On 3 June 2021 the Applicant’s representative sent to Mr Peat a copy of the terms of settlement signed by the Applicant along with the details of how the settlement amount should be paid. Despite follow up correspondence from the Applicant’s representative to Mr Peat on 16 June 2021 and 23 June 2021 the Respondent does not appear to have signed the settlement document or otherwise communicated with the Applicant’s representative.

[4] On 6 July 2021 the Applicant’s representative wrote to the Commission and said:

Dear Registry,

We arrived at an in-principle agreement on 3 June 2021. This offer has now been withdrawn by the Respondent as we have not received any correspondence or a signed copy of the Deed since this time.

Thus, the parties have not been able to reach an agreement, despite our countless efforts as below.

Accordingly, we respectfully request this matter be re-opened and allocated to a Member of the Commission for arbitration.

[5] That email provided a copy of that correspondence referred to in paragraph [3] above.

[6] The file was allocated to me and I listed the matter for a case management conference for the purpose of determining how to deal with the application and in order to understand if a binding agreement was claimed by either party. The Applicant and his representative attended that mention on 15 July 2021. No one from the Respondent attended and attempts to contact Mr Peat were not successful.

[7] Following on from this conference my chambers sent correspondence to the Respondent in which I sought his views as to whether an agreement had been reached. I advised Mr Peat that should he fail to respond to the correspondence the Commission would accept that no binding agreement had been reached and the matter would be referred to arbitration. Mr Peat was given until 22 July 2021 to respond to that correspondence. To date no response has been received.

[8] In the circumstances I am satisfied that no binding agreement has been reached between the parties to the application for unfair dismissal. The file will therefore be allocated for arbitration.

COMMISSIONER

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CaseChat Overview and Summary

The case of James Henshaw v Echuca Productions Pty Ltd T/A Riverside Meats was heard by the Fair Work Commission, dealing with an application for an unfair dismissal remedy. James Henshaw, the applicant, sought relief on the grounds that his dismissal by Echuca Productions Pty Ltd, trading as Riverside Meats, was unjust and potentially unlawful. The dispute centred around the termination of Mr Henshaw's employment, specifically whether the dismissal complied with the Fair Work Act 2009 and if there were valid reasons for the termination.

The primary legal issues before the Commission were whether the employer had just cause to terminate Mr Henshaw's employment and if the employer followed appropriate procedures as stipulated by the Act. The Commission had to assess if the dismissal was for a valid reason related to the employee's capacity or conduct, and whether the employer took reasonable steps to verify the allegations against Mr Henshaw before proceeding with the termination. Additionally, the Commission examined if the dismissal was procedurally fair, including whether Mr Henshaw was given a fair opportunity to respond to the allegations.

The Commission deliberated on the evidence presented by both parties, focusing on the employer's claims of misconduct and the employee's defence. After careful consideration, the Commission found that the employer had not provided sufficient evidence to substantiate the allegations of misconduct. Furthermore, the procedural aspects of the dismissal were found to be flawed, as Mr Henshaw was not adequately informed or given a chance to respond to the accusations. Consequently, the Commission ruled that the dismissal was unfair, leading to the grant of the applicant's remedy application.

The final orders of the Commission included the reinstatement of Mr Henshaw to his former position with back pay, along with compensation for the distress and inconvenience caused by the unfair dismissal. Echuca Productions Pty Ltd was also directed to provide a written apology to Mr Henshaw and to implement measures to ensure compliance with fair work practices in future employment terminations.

James Henshaw v Echuca Productions Pty Ltd T/A Riverside Meats

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established