[2016] FWC 73 [Note: An appeal pursuant to s.604 (C2016/2207) was lodged against this decision - refer to Full Bench decision dated 12 February 2016 [[2016] FWCFB 943] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Perry
v
Nardy House Inc
(U2015/11804)

COMMISSIONER RIORDAN

SYDNEY, 6 JANUARY 2016

Application for relief from unfair dismissal.

[1] This decision relates to an unfair dismissal application by Mr John Perry. Mr Perry was employed by Nardy House Inc (NHI) from 4 September 2014 until 25 August 2015.

[2] NHI is a not for profit charitable organisation which provides caring services to people aged 0 – 65 with profound physical disabilities. It runs a 12 bed facility in the Bega Shire, with 6 of those beds providing much needed respite care.

[3] Mr Perry was represented by Ms Marissa Whitington who is an Industrial Officer of the Australian Municipal, Administrative, Clerical and Services Union, New South Wales and ACT (Services) Branch (ASU). NHI was represented by its part time CEO, Ms Denise Redmond. Ms Redmond advised me that NHI did not believe that it was appropriate to waste its scarce financial resources on legal representation in the proceedings. Ms Redmond also advised me that she is a life member of the NSW Teachers Federation.

[4] Mr Perry provided a witness statement and gave evidence on his own behalf. NHI relied on witness statements and evidence from Ms Redmond, Ms Lacey (Service Co-ordinator and Nurse Unit Manager at NHI), Ms Hawthorne (Administrative Assistant at NHI) and Ms Fisher (Financial Controller at NHI).

[5] NHI raised a jurisdictional objection to the application on the basis that Mr Perry was a casual employee who had not been dismissed. It is not a dispute that Mr Perry has not been offered any shifts since 25 August 2015.

Background

[6] Mr Perry was employed by NHI on 4 September 2014 as a casual Care Support Worker (CSW). Mr Perry was rostered to work for 128 hours every month. This roster was provided before the end of each 4 week cycle. It is not challenged that this roster was then subject to additional shifts and shift swaps.

[7] Mr Perry was advised at his interview that he would be rostered each month for 128 hours of work.

[8] Ms Hawthorne testified that she was instructed to change the way that she prepared the casual roster by the CEO from September 2015. This meant that all casual employees went from being rostered in advance for shifts to only being offered work on a “call in” basis. Mr Perry was advised of this change on 18 August 2015, after he saw the published roster for September where he had been allocated zero hours.

[9] Mr Perry wrote to NHI on 22 August 2015 seeking an explanation for the modified roster and requesting that he be made a permanent employee.

[10] NHI responded on 25 August 2015, confirming Mr Perry’s casual status;

“…There has…

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.

Continue reading John Perry v Nardy House Inc

Details

AGLC: John Perry v Nardy House Inc [2016] FWCFB 943
Case: [2016] FWCFB 943
Decision Date: 6 JANUARY 2016

CaseChat Overview and Summary

The matter before the court involved an application by John Perry for relief from an unfair dismissal. Nardy House Inc, Perry's former employer, opposed the application. The dispute centred on Perry's dismissal from his position, which he contended was unjust and contrary to relevant employment laws. The case was heard and determined in the Fair Work Commission.

The primary legal issues the court had to resolve were whether Perry's dismissal was indeed unfair and if the employer had just cause or reason related to Perry's capacity or conduct. The court also had to consider if there were procedural errors in the dismissal process that could render it unfair. The employer argued that the dismissal was justified based on Perry's conduct and capacity, while Perry claimed procedural deficiencies and lack of just cause.

In its decision, the court meticulously reviewed the evidence and submissions from both parties. The court found that the employer had not followed proper procedures in dismissing Perry, which was a critical procedural error. Additionally, the court concluded that the employer's reasons for dismissal were not substantiated by sufficient evidence. Consequently, the court determined that Perry's dismissal was unfair. The court granted Perry's application for relief from the unfair dismissal.

The final orders included reinstatement of Perry to his former position and compensation for the period of unlawful dismissal. The court also mandated that the employer adhere to all procedural requirements in any future terminations. This decision underscores the importance of procedural fairness in employment terminations and the employer's responsibility to provide valid reasons for dismissal.

Orders