Jeffrie Trika v Home@Scope Pty Ltd - [2022] FWC 749

[2022] FWC 749

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jeffrie Trika
v

Home@Scope Pty Ltd

(U2021/10291)

DEPUTY PRESIDENT MASSON

MELBOURNE, 6 APRIL 2022

Application for an unfair dismissal remedy – termination not harsh, unjust or unreasonable – application dismissed.

On 15 November 2021, Mr Trika (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with Home@Scope Pty Ltd (the Respondent) on 27 October 2021. The Applicant seeks an order for compensation and reinstatement.

Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 30 March, 31 March and 1 April 2022. After hearing from the parties, I determined to conduct a hearing pursuant to s.399 of the Act.

At the hearing, the Applicant was represented by Ms Maggie Chen and gave evidence. The Respondent was granted permission to be legally represented pursuant to s.596(2) and was represented by Mr Nicholas Harrington of Counsel, who called the following witnesses to give evidence:

·     Olive Brinn – Senior Manager
·     Bernadette Trevitt – People and Culture Business Partner
·     Lisa Wright – Operations Manager
·     Heather Miles – Disability Support Worker
·     Tim Lane – House Supervisor
·     Angela Mueni – Disability Support Worker
·     Mrudul Gadda – Disability Support Worker
·     Veronica Milicevic – Client/Resident of 8 Keystone Crescent East Kew

Background and evidence

The Applicant’s employment

The Applicant commenced employment with the Department of Health and Human Services (DHHS) on 29 February 2016, initially in a casual role. He was subsequently engaged in fixed-term part-time and full-time roles before being engaged on a permanent part-time basis as a Disability Support Worker by DHHS from 16 September 2018[1]. The Applicant was covered in his employment by the Disability Services Enterprise Agreement Victoria 2018-2022[2] (the Agreement).

On 7 May 2019, the Applicant was moved to a group home at 14 Griffith St Bellfield (Bellfield) following a workplace investigation into his conduct initiated by DHHS[3].

In around July 2019 a number of DHHS group homes transferred to the Respondent. In the initial stages of that transfer, employees of DHHS (including the Applicant) were seconded to the Respondent. At the time of the transfer of the group homes to the Respondent the Applicant was working at the Bellfield group home[4].

On 4 January 2020, the Applicant self-reported an allegation made against him by a client at the Bellfield home. He was subsequently suspended from duty from 7 January 2020 for a period of approximately 7 months pending completion of an investigation[5]. The Applicant subsequently made a complaint against the DHHS and the Respondent with the Victorian Equal Opportunity and Human Rights Commission (the VEOHRC Complaint) which was the subject of a confidential settlement reached in October 2020.

On 14 July 2020, Ms Trevitt who is a People and Culture Business Partner…

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: [2022] FWC 749
Decision Date

CaseChat Overview and Summary

Jeffrie Trika, an applicant, sought an unfair dismissal remedy from Home@Scope Pty Ltd, the respondent. The applicant alleged that he was unfairly dismissed from his employment with the respondent on 27 October 2021. He sought an order for compensation and reinstatement. The application was dismissed. The Fair Work Commission was satisfied that the dismissal of the applicant was not harsh, unjust, or unreasonable. The Commission found that the dismissal was procedurally fair and that there was a valid reason related to the applicant's conduct for the dismissal. The Commission considered that the dismissal was not related to the applicant's performance and the size and capacity of the respondent did not impact on the procedures that it followed and as such these matters weighed neutrally in the Commission's consideration of whether the dismissal was unfair. The Commission was not satisfied that any other matters considered weighed in favour of a finding that the dismissal was unfair.

Orders