Jeremey Rush v James Engineering Pty Ltd - [2023] FWC 1145

[2023] FWC 1145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jeremey Rush
v

James Engineering Pty Ltd

(U2022/10682)

COMMISSIONER HUNT

BRISBANE, 19 JULY 2023

Application for an unfair dismissal remedy

On 7 November 2022, Mr Jeremy Rush made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with James Engineering Pty Ltd (the Respondent) and that his dismissal was harsh, unjust and unreasonable.

On 17 November 2022, the Respondent filed a Form F3 Employer Response to the application in which it asserted to be a small business employer, having employed 13 employees at the time of Mr Rush’s dismissal.

Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 22 March 2023. Mr Rush appeared and represented himself. The Respondent was represented by Mr Hung Pham, General Manager of the Respondent and Mr Greg Miscamble, Director of the Respondent. Due to the nature of the matter, I considered it appropriate to conduct the matter as a determinative conference.

Mr Miscamble did not provide a written witness statement prior to the determinative conference, as required by the directions issued by me. He gave oral evidence on the day which elongated the determinative conference and resulted in Mr Rush hearing evidence for the first time. He was provided with an opportunity to respond to Mr Miscamble’s new evidence.

Background

Mr Rush commenced employment with the Respondent on 21 March 2022 as a Sales Consultant. He was informed of his dismissal on 4 November 2022.

On 7 November 2022, Mr Rush received a termination letter dated 5 November 2022. The letter is extracted in full below:

“Dear Jeremy,

As you know, there is a Employment Agreement executed on 3^rd March 2022 in effect between yourself and our company, James Engineering Pty Ltd (JE).
As discussed and agreed on Friday, 4^th November 2022 in the presence of Greg Miscamble and myself, we would like to regretfully inform you we are terminating that agreement effect of 6^th November 2022.
We hereby offer you 1 month’s pay including phone bill re-imbursement in lieu of notice as good will to assist you in securing employment within that period and not attending to JE day to day duty at out Heathwood premises. The final payment is as per standard JE pay period i.e last Thursday of the month being 25^th November 2022.
As per Employment Agreement please return the following once you have gain employment.
· Laptop (removal of any personal files from C:\Drive)
· Fuel Card
· Linkt Card

I wanted you to know that JE appreciate your service for these past 7 months and wish you all the best for the future.
Please do not hesitate to use me as reference as my interest lies with you in gaining employment as soon as possible.
Kind Regards,
Hung Pham
General Manager”

Relevant Legislation

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 1145
Decision Date: 19 JULY 2023

CaseChat Overview and Summary

Jeremy Rush sought an unfair dismissal remedy from James Engineering Pty Ltd. Rush had been dismissed on 4 November 2022, after seven months’ employment. He contended that his dismissal was harsh, unjust and unreasonable. The primary issue was whether there was a valid reason for the dismissal. Rush contended that there was no valid reason. The company contended that Rush’s dismissal was justified due to his unsatisfactory performance. The Commissioner found that the dismissal was not based on a valid reason, but rather on a misunderstanding of the circumstances surrounding the negotiations with a potential client. The Commissioner also found that the dismissal was harsh, unjust and unreasonable as Rush had not been given an opportunity to respond to the reason for the dismissal, had not been warned about his performance, and the absence of a dedicated human resources specialist impacted on the procedures followed. The Commissioner found that Rush had mitigated his loss by finding new employment within two weeks of his dismissal, and therefore, no compensation was payable. The Commissioner did not make an order for compensation.

Orders