Jamie Spokes v Australian Dairy Super Stores T/A the Cow Shop - [2011] FWA 2747

[2011] FWA 2747

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Spokes
v
Australian Dairy Super Stores T/A The Cow Shop
(U2010/14864)

COMMISSIONER GOOLEY

MELBOURNE, 10 MAY 2011

Application for unfair dismissal remedy

[1] Mr Jamie Spokes (the Applicant) was employed by Australian Dairy Super Stores Pty Ltd trading as the Cow Shop (the Respondent) from 20 March 2008 until his employment was terminated on 24 November 2010.

[2] Mr Spokes lodged an application for relief pursuant to s394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 11 January 2011, and then listed for hearing on 16 and 17 March 2011.

[3] Ms McNaught, a legal practitioner, appeared with permission for Mr Spokes and Mr Bradley Doak, an owner and director of the Respondent, appeared for the Respondent.

[4] Mr Spokes, Mr Don Spokes and Ms Sophie Johnson gave evidence for the Applicant and Mr Doak, Mr Paul Smith, Mr Peter Bignell, Ms Nicole Rollings and Mr Timothy Rollings gave evidence for Respondent.

Jurisdiction of Fair Work Australia

[5] There is no dispute that Mr Spokes is a person who was protected from unfair dismissal. It was not disputed that the Respondent was a small business and that the Small Business Dismissal Code (the Code) applied.

Reasons for the dismissal

[6] In the employer response form 1 Mr Paul Smith, an owner of the business gave the following reasons for the termination of Mr Spokes’ employment:

Continued lateness;

Poor work performance;

Lying about jobs being completed;

Inability to be left unsupervised; and

Suspicion of theft.

[7] The Separation certificate provided to Mr Spokes stated that the reason for the termination was “unsuitability for this type of work”. 2

The Evidence

[8] The Applicant was employed by the Respondent as a fitter from August 2010. At the time of his dismissal, the Applicant was paid $684 per week for a 38 hour week. Prior to working as a fitter for the Respondent the Applicant worked for the Respondent as a retail assistant.

[9] Mr Spokes was required to commence work at 8.30am. Mr Spokes gave evidence that he arrived at work each day at approximately 8.25am to 8.30am and that if he was late he would advise Mr Rollings, his direct supervisor, by sending him a text message. 3 The Applicant denied being late up to an hour and a half for the two week period prior to being dismissed.

[10] Mr Spokes was critical of the training provided to him. The Australian Milking Machine Trade Association (AMMTA) provides training for dairy technicians. In relation to the AMMTA training it was Mr Spokes’ evidence that he did not receive the booklets and/or training. 4 He said he was also not given welding training.5

[11] It was his evidence that he was sent on his own to repair jobs he was not qualified to repair on his own. In response to specific incidents raised by 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

AGLC: Jamie Spokes v Australian Dairy Super Stores T/A the Cow Shop [2011] FWA 2747
Case: [2011] FWA 2747
Decision Date: 10 MAY 2011

CaseChat Overview and Summary

The applicant, Jamie Spokes, filed an application for unfair dismissal remedy against Australian Dairy Super Stores, trading as the Cow Shop, at the Fair Work Commission. Spokes, a former employee of the Cow Shop, sought relief for his termination, which he alleged was unjust. The Cow Shop contested the claim, asserting that Spokes' dismissal was justified under the applicable employment standards. The Fair Work Commission was tasked with determining whether Spokes' dismissal was indeed unfair and whether the Cow Shop had acted within its rights in terminating his employment.

The central issue before the Fair Work Commission was whether Spokes' dismissal was harsh, unjust, or unreasonable, as per section 387 of the Fair Work Act 2009. The Commission considered the proportionality of the termination in relation to the severity of Spokes' actions and whether the Cow Shop had adhered to procedural fairness. Additionally, the court needed to assess if there were any mitigating circumstances or if the Cow Shop had failed to take reasonable steps to remedy the situation prior to dismissal.

The Fair Work Commission deliberated on the evidence presented by both parties. It determined that the Cow Shop had acted reasonably in terminating Spokes' employment, given the severity of his misconduct. The Commission found that the Cow Shop had followed proper procedures and had not acted unreasonably or without cause. Consequently, the application for an unfair dismissal remedy was dismissed, and the Cow Shop's actions were deemed justified under the circumstances. The Commission concluded that the dismissal was not unfair, as it was proportionate to the nature of Spokes' actions.

Orders