DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Levi Capper
v
Compass Global Holdings Pty Ltd
(U2017/4339)

COMMISSIONER MCKINNON

MELBOURNE, 4 JULY 2017

Application for an unfair dismissal remedy.

Introduction

[1] Mr Levi Capper was a Senior Business Manager for Compass Global Holdings Pty Ltd (Compass Global), trading foreign exchange products in the Australian retail financial services market. According to his application, he commenced working for Compass Global in February 2015 as an independent contractor. It is not in dispute that on and from 1 February 2017, Mr Capper became an employee of Compass Global. After working continuously with Compass Global since 2015, MrCapper claims he was unfairly dismissed on 4 April 2017 and has applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Mr Capper represented himself in the proceedings and gave evidence in support of his claim.

[2] Compass Global objects to Mr Capper’s application. It claims that Mr Capper has not served the minimum employment period under section 383 of the Act and accordingly is not a person “protected from unfair dismissal” under section 382. Compass Global was represented by Ms Susie Block, Head of Legal and Compliance, Compass Global. Ms Block and Mr Michael Sarpi, Chief Operations Officer, Compass Global, gave evidence in the proceeding.

[3] Mr Capper’s application was filed on 21 April 2017. There is no dispute that his employment was terminated on 4 April 2017 and, in accordance with section 396 of the Act, I find that his application was filed within 21 days after the dismissal took effect.

[4] As at 4 April 2017, Compass Global says it employed 24 employees. This fact is not disputed by Mr Capper and I have no reason to doubt it. I find that the Small Business Fair Dismissal Code is not relevant in this case, because Compass Global was not a small business employer immediately before the time of the dismissal.

[5] No issue of redundancy arose and I find that the dismissal was not a case of genuine redundancy.

[6] To be protected from unfair dismissal, Mr Capper must have been employed by Compass Global for at least 6 months immediately before 4 April 2017. 1 The parties agree that Mr Capper was employed by Compass Global from 1 February 2017 until 4 April 2017. Mr Capper says he was also continuously employed by Compass Global in the period immediately prior to 1 February 2017. Compass Global disputes this. It agrees that it had a continuous relationship with Mr Capper from 2015 until the commencement of the employment relationship on 1 February 2017, but says that prior to this time, Mr Capper (through his company Goddergib Pty Ltd) (Goddergib) was an independent contractor.

[7] The question is whether Mr Capper has completed the minimum employment period as an employee of Compass Global. To answer this question, it is necessary to determine…

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: [2017] FWC 3525
Decision Date: 4 JULY 2017

CaseChat Overview and Summary

In the case of Levi Capper versus Compass Global Holdings Pty Ltd, the applicant sought relief for an unfair dismissal, asserting that his termination was unjust and contrary to the principles of fairness. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. The applicant, Mr Capper, contended that his dismissal was not only without valid reason but also without the procedural fairness that the Fair Work Act demands.

The court was tasked with determining whether the employer had just cause for the dismissal and if the termination process adhered to the legal standards for procedural fairness. Central to the case was the employer's assertion that Mr Capper's dismissal was due to poor performance and that the necessary steps were taken to address and rectify this before deciding to terminate his employment. The applicant argued that his dismissal was retaliatory and without due process, and that the employer had failed to provide him with an opportunity to remedy his performance issues.

The Fair Work Commission found that the employer's reasons for dismissal were supported by evidence and that the procedures followed were fair and appropriate. The tribunal concluded that Mr Capper's dismissal was not unfair and dismissed his application. The decision emphasised the employer's right to manage its business and employees in a manner that aligns with performance standards and organisational needs, provided that this is done in compliance with the law. The tribunal's findings were grounded in the employer's right to terminate an employee's contract under the conditions set out in the Fair Work Act, and the procedural steps taken were deemed adequate to meet the requirements of fairness.

Orders