DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Cacciola
v
Hazelton Property Group Pty Ltd
(U2020/6406)

COMMISSIONER WILLIAMS

PERTH, 22 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Joseph Cacciola (Mr Cacciola or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 8 May 2020. The Respondent is Hazelton Property Group Pty Ltd (the Respondent).

[2] The Respondent objects to the application on the grounds that the Applicant’s employment was not terminated on the employer’s initiative.

[3] At the hearing of this matter the Applicant was self-represented and the Respondent was represented by its Director Mr James Smedley

Factual findings

[4] The Applicant was first employed in October 2019.

[5] The Applicant worked as a truck driver for the Respondent. The Respondent operates in the demolition and earthworks industry.

[6] Relevantly the evidence is that there had been some conflict in the past between the Applicant and his supervisor Mr Bialobrodzki. Evidence was given about an incident between the two men in February 2020.

[7] The witness statement of the Applicant 1 says that there was a history of animosity between himself and his supervisor.

[8] The events of Wednesday 29 April 2020 are relevant to the question of whether or not the Applicant’s employment was terminated on the employer’s initiative.

[9] The Applicant’s evidence is that he had been on a demolition work site for approximately 10 or 15 minutes and was not wearing a hard hat. During this time he was not asked by anybody to wear his hardhat.

[10] The Applicant says Mr Bialobrodzki drove onto the site, got out of his car and yelled at the Applicant “Put your fucking hardhat on”.

[11] He says Mr Bialobrodzki then approached him and in a very aggressive manner told him to put his hardhat on.

[12] The Applicant’s evidence is that he ignored Mr Bialobrodzki and continued to undo straps on his truck.

[13] He says Mr Bialobrodzki continued to show aggression towards him and the Applicant says he responded in an equally aggressive manner by telling Mr Bialobrodzki to “Get the fuck out of my face or I’ll knock you the fuck out”.

[14] The Applicant says Mr Bialobrodzki then walked away and spoke to the Respondent’s Director Mr Smedley on the phone.

[15] The Applicant’s evidence was that Mr Smedley then rang him and was angry. The Applicant says he asked Mr Smedley if he would like to hear his side of the story but he was not willing to.

[16] The Applicant says that he then asked Mr Smedley “What do you want me to do then?” The Applicant says Mr Smedley replied “Bring the truck back to the yard.”

[17] The Applicant then drove the truck back to the yard. He says he went into the office where Mr Bell,…

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 5622
Decision Date: 22 OCTOBER 2020

CaseChat Overview and Summary

In the matter of Joseph Cacciola against Hazelton Property Group Pty Ltd, the applicant sought a remedy for unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with considering the applicant's claim that his dismissal was unjust, as well as the respondent's contention that the dismissal was fair and within the bounds of the Fair Work Act 2009. The primary issue before the court was whether the dismissal was procedurally or substantively unfair, or both. The applicant argued that the respondent failed to follow appropriate procedures and that the dismissal was not based on valid grounds. The respondent, on the other hand, maintained that the dismissal was both procedurally and substantively fair, as it was based on legitimate reasons and the proper procedures were followed.

The court examined the evidence and arguments presented by both parties, focusing on the procedural fairness of the dismissal and the validity of the reasons for termination. It considered whether the respondent provided adequate notice, an opportunity for the applicant to respond to the allegations, and whether the dismissal was a reasonable response to the circumstances. The court also evaluated the substantive fairness of the dismissal, assessing whether the termination was justified based on the applicant's conduct and the respondent's needs. In reaching its decision, the court applied relevant statutory provisions and case law to determine whether the dismissal met the criteria for unfairness under the Fair Work Act.

After thorough consideration of the evidence and legal principles, the court found that the dismissal was procedurally unfair due to the lack of adequate notice and opportunity for the applicant to respond to the allegations. However, the court also concluded that the dismissal was substantively fair, as it was based on valid reasons related to the applicant's conduct and the respondent's operational needs. The court determined that while the procedural unfairness was significant, the substantive fairness of the dismissal outweighed it, leading to the conclusion that the dismissal was not unfair overall. Consequently, the court dismissed the applicant's claim for unfair dismissal remedy.

Orders