John Keron v Westpac Banking Corporation - [2022] FWC 221

[2022] FWC 221
The attached document replaces the document previously issued with the above code on 4 February 2022.
The paragraph numbering has increased by three paragraph numbers. Paragraphs [95] to [285] have been renumbered as paragraphs [95] to [288]. Wording within the Decision is unchanged.
Associate to Deputy President Binet
Dated 8 February 2022

[2022] FWC 221

FAIR WORK COMMISSION

DECISION
Fair Work Act 2009
s.394—Unfair dismissal
John Keron
v
Westpac Banking Corporation
(U2021/3637)

DEPUTY PRESIDENT BINET

PERTH, 4 FEBRUARY 2022

Application for an unfair dismissal remedy
[1]       On 28 April 2021, Mr John Keron (Mr Keron) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Westpac Banking Corporation (Westpac).
[2]       Mr Keron was dismissed from his employment with Westpac after 35 years of service after an internal investigation found that he had inappropriately touched a female employee, and verbally abused another after an offsite workshop and social event.
[3]       On 13 May 2021, Westpac filed a Form F3 - Employer’s Response to unfair dismissal application stating that it had no jurisdictional objections to the Application.
[4]       On 27 May 2021, the parties participated in a conciliation but the matters in dispute could not be resolved.
[5]       Taking into account the parties wishes and circumstances, a Hearing, rather than a Determinative Conference, was determined to be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 29 September 2021, 30 September 2021 and 1 October 2021 (Hearing).
[6]       Directions for the filing of materials in advance of the Hearing were issued to the parties on 9 June 2021 (Directions).
Permission to be represented
[7]       The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
[8]       Both parties sought permission to be represented at the Hearing.
[9]       Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[10]     At the Hearing, Mr Keron was represented by Ms Maria Saraceni of Francis Burt Chambers and Westpac was represented by Mr Rayne Wade of Ashurst.
Evidence
[11]     The Directions required the parties to file their witness evidence in chief in advance of the Hearing.
[12]     In accordance with the Directions Mr Keron filed in advance of the Hearing a witness statement setting out his evidence in chief. At the Hearing he tendered a document setting out amendments and corrections to his witness statement which was marked as…

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 221
Decision Date: 4 FEBRUARY 2022

CaseChat Overview and Summary

John Keron was an employee of Westpac Banking Corporation (Westpac) for over 35 years. His employment was terminated following an investigation into two incidents. The first incident occurred at a social event organised by Westpac where Keron allegedly inappropriately touched a female employee. The second incident involved Keron verbally abusing another female employee after she made a comment to security which prevented him and a male colleague from entering a casino. Keron applied to the Fair Work Commission (FWC) for an unfair dismissal remedy. The court held that Keron's dismissal was not harsh, unjust or unreasonable. The decision was based on the following factors: there was a valid reason for dismissal related to Keron's conduct, he was notified of the reason, he was given an opportunity to respond to the reason, Westpac did not unreasonably refuse to allow him to have a support person present at discussions relating to his dismissal, and the size of Westpac's enterprise meant that it was likely to follow fair procedures. The court also considered the mitigating factors, including Keron's long service and good standing with Westpac, and the fact that his conduct appeared to be a direct consequence of his alcohol consumption at a work-related event. The application for an unfair dismissal remedy was dismissed.

Orders