DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kamaldeep Singh
v
Fenner (Australia) Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions
(U2015/3762)

COMMISSIONER GREGORY

MELBOURNE, 25 AUGUST 2015

Application for relief from unfair dismissal.

Introduction

[1] Mr Kamaldeep Singh commenced employment with Fenner (Australia) Pty Ltd (“Fenner Dunlop”) as a mill operator in August 2013. The business operates under the trading name of Fenner Dunlop Engineered Conveyor Solutions. Mr Singh was initially employed on a casual basis but after completing some initial training and a probation period was engaged as a full-time employee in November 2013.

[2] Mr Singh was dismissed following an incident in the weaving room on 4 February 2015. It is alleged he intentionally placed his hand close to the rotating drum of a machine that was operating at high speed. He was subsequently dismissed on the basis that his actions constituted serious misconduct. Mr Singh denies he acted in this way and lodged an unfair dismissal application claiming his dismissal was harsh, unjust and unreasonable. He seeks to be reinstated to his former position. This decision deals with that application.

[3] The application was dealt with in a hearing on 4 June 2015. However, at the conclusion of that hearing Mr Singh’s representative requested to be able to provide further written closing submissions. The Commission agreed to that request and further written submissions were received from both parties in accordance with a timeframe set down by the Commission.

[4] Mr Patrick Mulligan from Taylor and Preston Lawyers was granted permission to appear on behalf of Mr Singh pursuant to s.596(2)(b) on the basis his involvement would allow Mr Singh to be represented more effectively. Mr Tony Dalton from the Australian Industry Group appeared on behalf of Fenner Dunlop.

The Issue to Be Determined

[5] There is no dispute that at the time of his termination Mr Singh was a person protected from unfair dismissal under the terms of s.382 of the Fair Work Act 2009 (“the Act”).

[6] Section 385 of the Act continues to provide:

“A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.” 1

[7] In considering whether a dismissal is “harsh, unjust or unreasonable” the Act also provides that the Commission must take into account the criteria in s.387. It states:

“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

AGLC: Kamaldeep Singh v Fenner (Australia) Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions [2015] FWC 5583
Case: [2015] FWC 5583
Decision Date: 25 AUGUST 2015

CaseChat Overview and Summary

Kamaldeep Singh, the applicant, sought relief from an unfair dismissal from Fenner (Australia) Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions, the respondent. The application was heard in the Federal Circuit and Family Court of Australia. The central issue in this case was whether the dismissal of Singh was unjust and, if so, what remedies should be applied.

The primary legal issue was whether Singh's dismissal was substantively unfair under section 384 of the Fair Work Act 2009. Singh argued that his dismissal was not only procedurally unfair, due to a lack of a proper investigation, but also substantively unjust as the respondent had failed to consider relevant mitigating factors. The respondent contended that the dismissal was fair, given the serious nature of the misconduct and the employer's duty to maintain a safe workplace.

The Court examined the evidence and found that while there was procedural unfairness in the handling of the dismissal process, the substantive fairness of the dismissal was not in question. The evidence demonstrated that Singh had engaged in serious misconduct, which justified the termination. The Court concluded that the dismissal was procedurally flawed but ultimately substantively fair due to the gravity of Singh's actions. Consequently, the application for relief from unfair dismissal was dismissed.

No further orders were made by the Court.

Orders