Application to deal with a general protections dismissal dispute by arbitration - s.369 Fair Work Act 2009 (Cth) - distinction between unfair dismissal and adverse action proceedings - onus under s.361 discharged - application dismissed.

1. Introduction

[1] Mr Neil Keep (the applicant) was terminated from his employment with Performance Automobiles Pty Ltd (Performance Automobiles, the respondent) on 4 April 2014. Mr Keep alleges that the termination of his employment was in breach of Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act) and, in particular, that Performance Automobiles contravened s.340 of the FW Act by taking ‘adverse action’ against him because he exercised a ‘workplace right’. Mr Keep made application under s.365 of the FW Act for the Fair Work Commission (the FWC) to deal with the dispute about his dismissal by Performance Automobiles (‘the general protections dismissal dispute’). A conference did not resolve the dispute and the parties agreed to the FWC determining the dispute by consent arbitration. Mr Keep seeks orders for reinstatement (with continuity of service), compensation and costs.

[2] The evidence in respect of the consent arbitration was heard on 12 and 15 September 2014 and at the conclusion of the evidentiary hearing the parties were directed to file written submissions in relation to the question of liability only. For the reasons which follow we are satisfied that the respondent has discharged the onus under s.361 of the FW Act and accordingly have decided to dismiss Mr Keep’s application.

[3] Before turning to the factual context and the contentions we propose to say something

about the relevant legislative provisions.
[2014] FWCFB 8941

2. The Legislative Context
(i) The Arbitration of General Protections Dismissal Disputes

[4] Section 369 of the FW Act enables the FWC to deal with a general protections dismissal dispute (such as the present matter), by consent arbitration. Subsection 369(1) sets out the requirements which must be met before the FWC may deal with such a dispute by arbitration:

(i)       the FWC issues a certificate under s.368(3)(a) in relation to the dispute (s.369(1)(a));
(ii)      the parties notify the FWC that they agree to the FWC arbitrating the dispute (s.369(1)(b));
(iii)     the notification is given within 14 days of the certificate being issued, or within such period as the FWC allows or an application made during or after those 14 days (s.369(1)(c)(i)); and
(iv)    the notification complies with any requirements prescribed by the procedural rules (s.369(1)(c)(ii)).

[5] It is common ground that the requirements referred to in paragraphs [4] have been met. The parties notified the FWC that they had agreed to the FWC arbitrating their general protections dismissal dispute by filing a completed Form F8B. We are satisfied that we may deal with the dispute by arbitration.

[6] In dealing with a dispute…

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 Keep v Performance Automobiles Pty Ltd

Details

AGLC: Keep v Performance Automobiles Pty Ltd [2014] FWCFB 8941
Case: [2014] FWCFB 8941
Decision Date: 15 DECEMBER 2014

CaseChat Overview and Summary

Neil Keep was employed by Performance Automobiles Pty Ltd as a Pre-Delivery Inspection Supervisor. Keep's position was made redundant, and he was offered an alternative position as Yard Hand/Used Car Detailer, subject to him providing a medical report confirming his capacity to perform the role. Keep did not provide the report and his employment was terminated. Keep alleged that he was dismissed because he exercised a workplace right by making a claim under the Workers Rehabilitation and Compensation Act 1988, and sought orders for reinstatement, compensation and costs. Performance Automobiles denied the allegation, asserting that Keep's position was genuinely redundant, and that he was unable to take up the offer of alternative employment due to his inability to provide the required medical report. The Fair Work Commission held that the applicant had exercised a workplace right and that the respondent had taken adverse action against the applicant, but found that the respondent had discharged the onus of proving that the adverse action was not taken because of the applicant's exercise of a workplace right. The application was dismissed.

Orders