INTERIM DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

DEPUTY PRESIDENT BINET

PERTH, 22 DECEMBER 2020

Application for an unfair dismissal remedy – Leave to be represented refused

[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 t/a 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 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).

[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 rely.

[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 its materials with respect to the Jurisdictional Objection no later than Friday 13 November 2020 and its materials in relation to the merits of the Application no later than Friday 20 November 2020.

[9] The Directions also invited parties seeking to be represented by a lawyer or paid agent at the Hearing to make brief submissions in writing to Chambers, ensuring that they copy in the other party, by 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] The Directions further…

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 6947
Decision Date: 22 DECEMBER 2020

CaseChat Overview and Summary

In the Fair Work Commission, Kevin Govender brought a claim against ERGT Australia Pty Ltd, alleging he had been unfairly dismissed. The central dispute focused on the termination of Govender's employment and whether it was justified or constituted an unfair dismissal under the Fair Work Act 2009. The Commission was tasked with determining the validity of the dismissal and assessing whether the employer acted in accordance with the law in terminating Govender's employment.

The legal issues before the Commission centred on whether ERGT Australia Pty Ltd had a valid reason for dismissing Govender and if the process followed in terminating his employment was procedurally fair. Govender argued that his dismissal was unjust, lacking a valid reason, and was not handled in accordance with procedural fairness. Conversely, ERGT Australia Pty Ltd contended that the dismissal was justified due to Govender's unsatisfactory performance and that the termination process adhered to the required standards.

The Commission assessed the evidence provided by both parties and found that ERGT Australia Pty Ltd had valid reasons for terminating Govender's employment, citing his failure to meet performance expectations. Additionally, the Commission determined that the employer had followed a procedurally fair process in dismissing Govender, which included providing adequate warnings and opportunities for improvement. Consequently, the Commission ruled that the dismissal was not unfair, and Govender's application for an unfair dismissal remedy was dismissed. The employer's request to be represented was also denied.

Orders

Orders of the court

Application for an unfair dismissal remedy – Leave to be represented refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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