Jarrad Langley v Ballestrin Construction Services Pty Ltd - [2023] FWC 367

[2023] FWC 367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jarrad Langley
v

Ballestrin Construction Services Pty Ltd

(U2022/9377)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 15 FEBRUARY 2023

Application for an unfair dismissal remedy – civil construction sector – estimator – vehicle repair – alleged misconduct – procedural fairness – whether harsh – valid reason – serious breach of duty – material denial of procedural fairness – overall, dismissal not harsh, unjust or unreasonable – application dismissed

On 20 September 2022 Jarrad Langley (Mr Langley or the applicant) applied under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy. He was dismissed on 5 September 2022 by Ballestrin Construction Services Pty Ltd (Ballestrin, the respondent or the employer).

At the date of dismissal, Mr Langley was employed as an Estimator.

Mr Langley claims the dismissal was harsh, unjust or unreasonable. He seeks compensation.

Ballestrin oppose the application. It contends that the dismissal was not unfair and no issue of remedy arises.

Conciliation was conducted on 3 November 2022. The application did not resolve.

Directions were issued on 24 November and 22 December 2022.

In advance of the hearing, I received materials from Mr Langley and the employer.

On 6 January 2023, I granted permission for Ballestrin to be legally represented notwithstanding Mr Langley’s objection.[1]

I dealt further with interlocutory matters on 23 January 2023, including an order for production at Mr Langley’s request.

I heard the matter (merits and remedy) by video on 24 and 25 January 2023. Mr Langley was self-represented. I provided a measure of assistance to Mr Langley, consistent with my independent statutory function, to ensure that his case was fully presented and that of the respondent tested. This included asking additional questions of employer witnesses than might have otherwise been required.

Evidence

Mr Langley gave oral evidence on a statement and related documents filed in his name.[2]

Six witnesses were called by the employer:

· Andrew Worbey, Manager Stores and Purchasing (McMahons);[3]

· Clifford Oliver Byrne, Construction Manager (Ballestrin);[4]

· Tania Trepa, Human Resources Support Manager (McMahons);[5]

· Peter William Height, Estimating and Contracts Manager (Ballestrin);[6]

· Andrew Taylor McClymont, Operations Manager (Ballestrin);[7] and

· Michael Brian Hyde, Executive General Manager (McMahons) formerly General Manager (Ballestrin).[8]

Although aspects of the evidence concerned matters across Mr Langley’s three years of service, the evidence was primarily focused on events concerning the repair and service of a company motor vehicle in the four weeks prior to dismissal.

A somewhat unusual aspect of this application is that whilst it concerns allegations of misconduct, the central elements of the alleged conduct are not in dispute. Whilst there are some disputed facts, they are limited. Primarily, this matter concerns whether the non-disputed conduct was misconduct, and whether dismissal on that account was unfair.

The central facts being agreed makes fact-finding easier.

However, some issues of credit arise, at least on the disputed facts. It is appropriate in that context to make some general…

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: [2023] FWC 367
Decision Date: 15 FEBRUARY 2023

CaseChat Overview and Summary

Jarrad Langley brought an unfair dismissal application against Ballestrin Construction Services Pty Ltd before the Fair Work Commission. Mr Langley was employed by Ballestrin as an estimator when his employment was terminated on 5 September 2022. He claims his dismissal was harsh, unjust or unreasonable. Ballestrin contends that the dismissal was not unfair and no issue of remedy arises. The primary issue for the Commission to determine is whether Mr Langley's dismissal was "harsh, unjust or unreasonable" and, if so, is it appropriate to order a remedy by way of reinstatement or compensation. The Commission found that Ballestrin had valid reasons for dismissing Mr Langley related to his conduct and capacity, including serious breaches of fiduciary duty. However, the Commission also found that the investigation was infected by prejudgement and Mr Langley was not genuinely listened to when responding. These were material denials of procedural fairness. Although the Commission found that the denials of procedural fairness weighed strongly in favour of a finding of unfairness, the serious breaches of duty by Mr Langley were such that the dismissal was not re-characterised as harsh on that account. The dismissal was not harsh, unjust or unreasonable. No issue of remedy arises. The application was dismissed.

Orders