DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Jeff Parkes
v
Fat Prophets Pty Ltd
(U2017/3912)

DEPUTY PRESIDENT SAMS

SYDNEY, 5 DECEMBER 2017

Application for an unfair dismissal remedy – financial services industry – client adviser –agreement to work from home at remote location – expectation of ongoing employment – business restructure – no further opportunity to work from home – direction to relocate to Sydney – applicant did not resign – Commission’s jurisdiction established – direction lawful but not reasonable – termination of employment without warning or procedural fairness – unreasonable to direct relocation without appropriate transitional arrangements – no valid reason for dismissal – applicant’s dismissal harsh, unjust and unreasonable – reinstatement inappropriate – compensation ordered – orders made.

[1] Mr Jeff Parkes (the ‘applicant’) commenced employment with Fat Prophet’s Pty Ltd (the ‘respondent’) on 22 October 2014. The respondent is in the financial services industry and the applicant was employed as a Senior Client Advisor on a base salary of $59,360, plus commission. The applicant was initially employed in the Sydney office. However, in September 2016, around the time his wife obtained employment in Byron Bay, the applicant requested to work from home in Byron Bay. This arrangement was agreed to by the respondent. However, it was the respondent’s contention that this arrangement was only agreed to on a temporary basis, as there were plans for the company to open an office on the Gold Coast. This was scheduled to take place in early 2017, and the applicant had understood he would work at the Gold Coast office.

[2] After a review of the work from home arrangements and the abandonment of the proposal for the Gold Coast office, the respondent’s Chief Operating Officer, Mr Leo Lopez believed the applicant’s temporary arrangement could not continue. As a result, the applicant was directed to return to his role as Account Manager/Team Leader in the Sydney office. On 30 March 2017, Mr Lopez and Mr Patrick Ganley (former CFO) advised the applicant of the proposal for him to relocate to Sydney. The respondent claimed the applicant refused to return to Sydney and resigned that day. The applicant denied he was directed to return to Sydney; rather he was dismissed that day, without any discussion as to any alternative options. The next day, the applicant received a letter from Mr Lopez headed ‘Letter of Termination of Employment’, which said in the first paragraph:

‘We refer to notice issued to you on the 30th March and effective today the 31st March for the termination of your employment with Fat Prophets Pty Ltd.’

[3] On 11 April 2017, the applicant filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), for an unfair dismissal remedy; specifically that he be reinstated to his former position and be paid lost remuneration since his dismissal. The application was listed for a Conciliator assisted phone conference on 12 May 2017, but the matter did not…

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: [2017] FWC 6121
Decision Date: 5 DECEMBER 2017

CaseChat Overview and Summary

Jeff Parkes brought an application against Fat Prophets Pty Ltd, seeking relief for unfair dismissal. Mr Parkes, a client adviser in the financial services industry, had been employed by Fat Prophets and was working from home in a remote location. He had an expectation of ongoing employment but was affected by a business restructure which resulted in no further opportunity to work from home. He was then directed to relocate to Sydney, which he did not do, leading to his dismissal. The Fair Work Commission was asked to determine whether the dismissal was unfair.

The key issues before the Commission were whether the direction to relocate was lawful and reasonable, and whether the dismissal was harsh, unjust, or unreasonable. The Commission found that the direction to relocate was lawful as it was within the scope of the employment agreement, but not reasonable given the lack of appropriate transitional arrangements and without any valid reason. The termination of employment was deemed to be without warning or procedural fairness, and therefore unreasonable.

The Commission concluded that Mr Parkes' dismissal was harsh, unjust, and unreasonable. While reinstatement was not considered appropriate, the Commission ordered compensation for the unfair dismissal. This decision highlights the importance of procedural fairness and appropriate transitional arrangements when directing an employee to relocate, especially in the context of an ongoing employment expectation. The court's ruling underscores the need for employers to consider the implications of their actions on employees, particularly in restructuring situations.

Orders