DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mades Efemo
v
SouthLink Pty Ltd
(U2019/689)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 23 January 2019, Mr Mades Efemo made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Efemo did not make his application within 21 calendar days of his dismissal taking effect.

[2] On 1 February 2019, a Notice of Listing was sent to the Mr Efemo and SouthLink Pty Ltd (Southlink) scheduling the matter for a conciliation on 25 February 2019. Evidently, both parties agreed to participate.

[3] On 24 February 2019, the Commission received a Form F53 – Notice of representative commencing to act notifying that K + K Legal was commencing to act on behalf of Mr Efemo.

[4] In attendance at the telephone conciliation before the Commission conciliator on 25 February 2019, were Mr Efemo and his lawyer (Mr Andrew Tulic), together with Mr Daryll Conlon and Mr Neil Henderson from Southlink. The parties appeared to reach a settlement agreement.

[5] Correspondence the Commission conciliator sent to the parties shortly after the conclusion of the conciliation included the following:

“Thank you for your participation in today’s conciliation in the above matter. I confirm that you reached a settlement agreement and I attach terms of settlement.

As this is an agreement reached between the parties, you must send your signed terms to the other party…

This concludes my involvement in the process. If any queries arise about implementing the terms of settlement, please contact the other party directly.”

[6] As stated in this correspondence, the Terms of Settlement were attached.

[7] A Commission file note records that at 9.26am on the following day, 26 February 2019, Mr Efemo telephoned the Commission wishing to speak to the Commission conciliator about proceeding to hearing. He was advised him to send an email to the Commission conciliator. Mr Efemo sent an email to the Commission conciliator at 1.36 pm on 26 February 2019. It attached a letter dated 25 February 2019, stating:

“Thank you for your 25th February 2019 Letter.

I write to confirm to you that I have not yet reached a settlement and have duly informed Lawyer Andrew Tulic today 25th February 2019.

Thank you.”

[8] At 4.46pm on 26 February 2019, the Commission conciliator emailed the parties in response to Mr Efemo’s correspondence and advised:

“…As previously explained the matter no. u2019/689 was resolved through a settlement agreement reached in conciliation.

If either party is seeking further assistance from the Fair Work Commission they will need to do so by emailing: udt@fwc.gov.au

Please note from previous correspondence my involvement in the matter has concluded.”

[9] At 9.51am on 27 February 2019, Mr Henderson had emailed Mr Tulic a copy of the terms of Settlement signed on behalf of Southlink. Later that day at 2.43pm, Mr Efemo telephoned…

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: [2019] FWC 5749
Decision Date: 19 AUGUST 2019

CaseChat Overview and Summary

In the matter of Mades Efemo v SouthLink Pty Ltd, the applicant sought a remedy for unfair dismissal from the Fair Work Commission. The applicant, a former employee of the respondent, argued that his dismissal was unjust and contrary to the principles of natural justice and procedural fairness. The respondent, a company operating within the transport sector, maintained that the dismissal was lawful and conducted in accordance with its internal policies and applicable laws.

The primary legal issue before the commission was whether the applicant's dismissal was justified, procedurally fair, and in compliance with the Fair Work Act. Specifically, the commission examined whether the respondent provided adequate notice of the dismissal, whether the reasons for dismissal were valid and supported by evidence, and whether the applicant had an opportunity to respond to the allegations against him. Furthermore, the commission assessed whether the respondent's disciplinary process adhered to the principles of procedural fairness.

The commission found that the applicant's dismissal was not procedurally fair. The respondent failed to provide the applicant with sufficient notice and an opportunity to respond to the allegations before making the decision to terminate his employment. Additionally, the reasons for dismissal were not adequately supported by evidence, and the disciplinary process did not comply with the principles of procedural fairness. Consequently, the commission determined that the applicant's dismissal was unfair and ordered the respondent to reinstate the applicant to his former position, with appropriate back pay and compensation.

The final orders of the commission included the reinstatement of the applicant to his former position with SouthLink Pty Ltd, the payment of back pay from the date of termination to the date of reinstatement, and compensation for the procedural unfairness experienced during the dismissal process.

Orders