[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] and 21 April 2016 [[2016] FWCFB 1621]] respectively for result of appeals.]

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…

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: [2016] FWC 73
Decision Date: 6 JANUARY 2016

CaseChat Overview and Summary

John Perry commenced proceedings against Nardy House Inc in the Fair Work Commission, seeking relief from an alleged unfair dismissal. Perry claimed that his termination was unjust and contrary to the principles enshrined in the Fair Work Act 2009. Nardy House Inc defended the dismissal, asserting that it complied with the statutory requirements and was based on legitimate business reasons.

The court was tasked with determining whether the dismissal was indeed unfair, focusing on the legitimacy of the reasons provided by the employer and whether the procedural fairness was observed. Key issues included whether Nardy House Inc followed the correct process for dismissal, whether the reasons were valid and supported by evidence, and whether the dismissal was proportionate to the circumstances. The court also considered whether Perry's conduct warranted dismissal and if there were any mitigating factors.

In its judgment, the Fair Work Commission found that Nardy House Inc did not adequately demonstrate that the dismissal was justified. The reasons provided were not sufficiently substantiated, and the procedural steps leading to the dismissal were flawed. The Commission emphasised that the employer's burden of proving fairness in dismissal is significant, and in this instance, it was not met. Consequently, the court ruled that the dismissal was unfair and ordered that Perry be reinstated to his position or compensated with equivalent remuneration.

The Fair Work Commission ordered Nardy House Inc to reinstate John Perry to his former position or, in the alternative, to pay him compensation equivalent to the remuneration he would have earned had he not been dismissed. The decision underscored the importance of adhering to procedural fairness and providing robust evidence to substantiate dismissals.

Orders