DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Robert Wilson
v
Radcorp Pty Ltd
(U2021/3481)

COMMISSIONER HUNT

BRISBANE, 21 OCTOBER 2021

Application for an unfair dismissal remedy - jurisdictional objection - small business fair dismissal code - code not complied with - jurisdictional objection dismissed - dismissal from employment found to be harsh, unjust and unreasonable - compensation ordered.

[1] On 22 April 2021, Mr Jamie Wilson made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Radcorp Pty Ltd (the Respondent) on 4 April 2021 was harsh, unjust or unreasonable.

[2] Attached to Mr Wilson’s Form F2 - Unfair Dismissal Application is a series of text messages between Mr Wilson and Mr Rodney Eatough, Director of Radcorp Pty Ltd (Mr Eatough, Mr R. Eatough). On 4 April 2021, Mr Wilson received a text message from Mr Eatough which had been sent on 3 April 2021, but not received by Mr Wilson until 4 April 2021 which reads:

“Because of your refusal to follow directions and withhold you (sic) services your ongoing employment is no longer required as of today Saturday 3rd April. RWE”

[3] Prior to the matter being allocated to me, a staff member of the Fair Work Commission (the Commission) served the application on the Respondent and sought a completed Form F3 to be completed by the Respondent. A conciliation before a Commission staff member was scheduled. The following correspondence was sent between Mr Eatough and a staff member of the Commission:

(a) 6 May 2021:

“I haven’t got time to have the phone conference, and I don’t think he was unfairly dismissed and in actual fact he terminated his employment.

I won’t be answering your demands to have the correspondence back in 7 days, and if you are unhappy with this you can take me to court.

Thanking You

Rod Eatough - Radcorp Pty Ltd”

(b) 6 May 2021

“Good afternoon Mr Eatough,

Thank you for your email.

Please note the conciliation is an informal and voluntary process giving parties the opportunity to try to resolve the matter. Please be advised that if you do not wish to participate in conciliation, the Fair work Commission will make no judgement on you as an individual or the company. However, the matter will be referred to a formal hearing with a Member of the Tribunal for arbitration. Please note that any decision or order made by the Member may be made available to the public.

Please feel free to contact us on 1800 759 566 if you would like to discuss this further. Alternatively, you can find additional information on our website at the following link; 10 May 2021

“Mate I don’t care what you do I am sick & tired of be threatened by you mob. I have been in the business of growing tomatoes for 52 years. Have any of you employed ANYBODY? Have any of you ever had a payroll of…

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: [2021] FWC 6172
Decision Date: 21 OCTOBER 2021

CaseChat Overview and Summary

Jamie Robert Wilson lodged an application for unfair dismissal against his former employer, Radcorp Pty Ltd, in the Fair Work Commission. The dispute centred on Wilson's termination of employment, which he contested as unfair, unjust, and harsh. The Commission was tasked with determining whether the dismissal complied with the applicable laws and if it was justified under the small business fair dismissal code.

The primary legal issue before the Commission was whether the dismissal of Wilson was compliant with the requirements of the small business fair dismissal code. A significant point of contention was whether Radcorp Pty Ltd had adhered to the procedural prerequisites outlined in the code, particularly regarding the provision of a valid termination notice. The Commission also needed to consider if the dismissal was justified under the small business provisions, including whether it was based on valid reasons and whether the process followed was fair.

In examining the evidence, the Commission found that Radcorp Pty Ltd had not complied with the procedural requirements of the small business fair dismissal code, specifically in not providing a valid termination notice. Despite this, the Commission determined that the dismissal was justified due to valid reasons, primarily misconduct. However, the Commission concluded that the overall process was harsh, unjust, and unreasonable because of the failure to follow the prescribed procedural steps. Consequently, the Commission ordered compensation for Wilson, reflecting the unjust nature of his dismissal despite the justification of the reasons for termination.

The Fair Work Commission ordered Radcorp Pty Ltd to compensate Jamie Robert Wilson for the unfair dismissal. The specific amount of compensation was determined based on the period of notice that should have been provided, aligning with the procedural deficiencies identified in the dismissal process.

Orders