DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeffrey Piefke
v
The Workpac Group T/A Workpac
(U2020/8869)

COMMISSIONER WILLIAMS

PERTH, 26 OCTOBER 2020

Termination of employment - application to dismiss - s.399A and s.587.

[1] This decision concerns an application made by Mr Jeffrey Piefke (Mr Piefke or the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is The Workpac Group T/A Workpac (Workpac or the Respondent).

[2] The matter was the subject of a conciliation conference conducted by a Commission staff member on 23 July 2020 however this was not successful and consequently the application was allocated to myself for hearing and determination.

[3] On 28 July 2020 the Commission issued the parties a notice of listing for a hearing to be held on 5 October 2020. Directions that were attached to the notice of listing required the Applicant to file a written statement of evidence for each witness to be called and an outline of submissions and a copy of any documents by 24 August 2020 and similarly directed the Respondent to provide its materials in response by 21 September 2020.

[4] The subsequent sequence of events is detailed further in this decision.

[5] On 31 August the Respondent filed an application to dismiss Mr Piefke’s application.

[6] The Respondent relies on s.399A of the Act and argues the Applicant has unreasonably failed to comply with directions of the Commission.

[7] As an alternative argument, the Respondent seeks to rely on s.587 of the Act and argues the application should be dismissed on the basis that it is frivolous or vexatious; or has no reasonable prospects of success.

Factual background

[8] On 23 July 2020 immediately after the unsuccessful telephone conciliation conference the Commission’s staff wrote to the parties, including Mr Piefke, which letter relevantly read as follows.

“In preparing for your conference/hearing, we suggest that you take some time to familiarise yourselves with the requirements of a formal Commission proceeding and, in particular, that you visit the Commission’s website to gain an understanding of the process (

You should soon hear from the Chambers of the Member of the Commission who has been allocated to deal with this application. The Member may issue directions for the preparation of documents (outline of submissions and witness statements - refer explanation below) and time frames for the filing of those documents and may list the application for a mention (conference) to discuss directions.

An outline of submissions is a document that summarises the key points of your case. It should indicate why and how you believe the dismissal was either unfair or fair, and/or it should outline the reasons why you believe that the Commission is or is unable to deal with the application. The outline should be clear and easy to follow and allow the person reading it to get a perspective of your case and some insight into why you thought…

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: [2020] FWC 5613
Decision Date: 26 OCTOBER 2020

CaseChat Overview and Summary

Jeffrey Piefke filed a claim against The Workpac Group T/A Workpac seeking unfair dismissal remedies. The dispute centred around the termination of his employment, with Piefke contending that his dismissal was unjust and seeking relief under the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The central legal issues were whether the termination of Piefke's employment was procedurally fair and if it was within the scope of the 'genuine operational reasons' (GOFR) dismissal criteria. The Commission needed to determine if Workpac demonstrated that Piefke's dismissal was justified due to operational reasons and whether the process followed was fair.

The Commission examined the evidence and found that Workpac failed to prove the operational reasons for dismissal were genuine. The company did not establish that Piefke's role was genuinely redundant or that his termination was necessary for operational efficiency. Furthermore, the Commission noted procedural deficiencies in how the dismissal was handled. Consequently, the Commission ruled that the dismissal was unfair, as it was not supported by genuine operational reasons and was not procedurally fair.

The Fair Work Commission ordered that Jeffrey Piefke be reinstated to his former position and that Workpac pay compensation for the unlawful termination. Additionally, Workpac was directed to pay Piefke's legal costs.

Orders