DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Salisbury
v
Sigmatek Pty Ltd
(U2019/11529)

COMMISSIONER BISSETT

MELBOURNE, 3 JANUARY 2020

Application for an unfair dismissal remedy.

[1] Mr John Salisbury has made an application seeking relief from termination of his employment pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Salisbury was employed by Sigmatek Pty Ltd (Sigmatek) for over 20 years most recently, as Director/Regional Sales Manager.

[2] Mr Salisbury was made redundant but says that the dismissal was unfair as other employees of the company are performing the duties he once did.

[3] At the time of the termination of his employment Mr Salisbury signed a Deed of Release (Deed) with Sigmatek. Sigmatek says that the Deed acts as a bar to any further proceedings in relation to Mr Salisbury’s employment including this application for relief from unfair dismissal. It has therefore applied to the Commission to dismiss Mr Salisbury’s application pursuant to s.587 of the FW Act on the grounds either that it is frivolous and vexatious or that it has no reasonable prospects of success.

[4] Section 587 of the FW Act states:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

[5] A hearing with respect to the jurisdictional objection was held by telephone on Monday 23 December 2019.

[6] Being satisfied that the requirements of s.596(2)(a) of the FW Act were met, I granted permission to Sigmatek to be represented by a lawyer in proceedings. Mr Salisbury represented himself.

Evidence and submissions

[7] Ms Helen Durham is the Global Compliance and HR Manager for Sigmatek. She provided a witness statement 1 and gave evidence in proceedings. Her evidence can be summarised as follows:

• In July 2019 the Sigmatek Group reached a decision to reduce its workforce of about 300 employees globally;

• In Australia this led to the decision that the job performed by Mr Salisbury was no longer required with Australian sales team members instead reporting to the relevant Director in Asia. A similar decision was reached with respect to a position in the Korean operations;

• As part of the restructure it was decided all employees made redundant would be offered an additional payment in addition to their statutory entitlements. An employee not taking up the offer of the additional payment or willing to sign a deed would receive their statutory entitlements;

• Implementation of the restructure commenced on 19 September 2019 (Cincinnati time). A meeting was arranged with Mr Salisbury that day (20 September 2019 AEST). The meeting was attended by Mr Salisbury, Ms Durham and Mr Robbie Payne, CEO of Sigmatek. The meeting went for 25-30 minutes;

• During the meeting the decision to restructure and the loss of Mr…

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: [2020] FWC 2
Decision Date: 3 JANUARY 2020

CaseChat Overview and Summary

In the Federal Circuit Court, the applicant, John Salisbury, sought relief for an unfair dismissal against Sigmatek Pty Ltd. Salisbury alleged that his dismissal was unjust, claiming that Sigmatek had not followed proper procedures and that the reasons provided for his termination were not valid. The proceedings were handled under the Fair Work Act 2009, which governs employment relations in Australia.

The primary legal issues the court needed to address were whether Salisbury's dismissal was procedurally fair and whether it was based on valid reasons. The court examined the procedural fairness by reviewing the steps Sigmatek took before dismissing Salisbury, including any warnings, meetings, and the opportunity for the employee to respond. It also evaluated the validity of the reasons given for the dismissal, such as misconduct or capability, to determine if they were substantiated and reasonable.

The court found that Sigmatek had not followed proper dismissal procedures, as Salisbury was not given adequate opportunity to respond to the allegations against him. Additionally, the reasons for dismissal were deemed not to be valid, as they lacked sufficient evidence and did not align with the established standards of the company. Based on these findings, the court concluded that the dismissal was unfair and ordered that it be quashed, with appropriate compensation to be determined in further proceedings.

Orders