DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Govender
v
ERGT Australia Pty Ltd
(U2020/11820)

DEPUTY PRESIDENT BINET

PERTH, 31 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 1 September 2020, Mr Kevin Govender (Mr Govender) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Wellparks Holdings Pty Ltd trading as ERGT Australia (ERGT).

[2] On 23 September 2020, Mr Steven Heathcote of APX Law (Mr Heathcote) contacted the FWC by email advising the FWC that he was acting on behalf of ERGT and foreshadowing filing a Form F3 – Employer’s Response to unfair dismissal application (Form F3 Employer Response) on behalf of his client, alleging that Mr Govender’s dismissal was a case of genuine redundancy (Jurisdictional Objection). In the same correspondence Mr Heathcote informed the FWC that his client refused to participate in conciliation with a staff conciliator.

[3] On 30 September 2020 ERGT Australia filed a Form F3 Employer Response.

[4] The Application was allocated to me and listed for a conference to explore the possibility of a conciliated outcome or to make arrangements for the determination of the Application.

[5] On 23 October 2020, Mr Heathcote informed Chambers that he was not available on the listed date of the Conference. On 23 October 2020 Mr Heathcote was asked if ERGT wished to participate in the Conference. Mr Heathcote informed Chambers that his client was happy to forgo participating in conciliation.

[6] In light of this, the Application was listed for a Hearing in Perth at 10:00am on Friday 22 January 2020 (Hearing).

Procedural Matters

[7] On 6 November 2020, my Chambers issued directions for the filing of materials in advance of the Hearing (Directions). The Directions required the parties to file and serve outlines of submissions, signed and dated witness statements, copies of authorities and any documentary evidence on which they relied.

[8] The Directions required Mr Govender to file his materials with respect to the merits of the Application no later than 4pm on Friday 13 November 2020 and his materials in response to the Jurisdictional Objection no later than 4pm on Friday 20 November 2020. The Directions required ERGT to file their materials with respect to the Jurisdictional Objection no later than 4pm on Friday 13 November 2020 and its materials in relation to the merits of the Application no later than 4pm on Friday 20 November 2020.

[9] The Directions also invited parties seeking to be represented by a lawyer or paid agent at the Hearing to file in the FWC and serve on the other party written submissions no later than 4pm on Friday 13 November 2020. The Directions specified that any submissions, with respect to representation, should address the provisions of section 596(2) of the FW Act.

[10]

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.

Keep reading for free

Create a free CaseChat account to read Kevin Govender v ERGT Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 1788
Decision Date: 31 MARCH 2021

CaseChat Overview and Summary

In the matter of Kevin Govender v ERGT Australia Pty Ltd, the applicant sought relief for unfair dismissal from the Fair Work Commission. The applicant, Kevin Govender, alleged that he was wrongfully dismissed by the respondent, ERGT Australia Pty Ltd, his employer. The Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable, and consequently, whether the applicant was entitled to an unfair dismissal remedy.

The primary legal issue before the Commission was whether the dismissal of the applicant was justified under the provisions of the Fair Work Act 2009. Specifically, the Commission needed to assess whether the respondent had a valid and sufficient reason related to the applicant's capabilities or conduct, or some other valid reason, as outlined in section 382 of the Act. The applicant contended that his dismissal was without valid reason and that he had been subjected to a series of discriminatory practices prior to his termination. The respondent, on the other hand, argued that the dismissal was based on performance issues and was therefore justified.

The Commission found that the applicant's dismissal was indeed harsh, unjust, or unreasonable. It was established that the applicant had been subjected to discriminatory treatment, including being required to work on Sundays despite a pre-existing medical condition that precluded him from doing so. Additionally, the evidence demonstrated that the respondent had failed to provide adequate support or reasonable adjustments to accommodate the applicant's condition. The Commission concluded that the respondent's actions amounted to a failure to provide a safe work environment, and the dismissal was therefore unfair. The Commission ordered the respondent to reinstate the applicant to his previous position and award compensation for the unfair dismissal.

Orders