DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mades Efemo
v
SouthLink Pty Ltd
(U2019/689)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 MAY 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).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Efemo stated that his employment had been terminated by Southlink Pty Ltd (Southlink). Mr Efemo said that he was notified of his dismissal on 20 December 2018, but was unsure when his dismissal took effect because he remained rostered to work on 28 and 29 December 2018 until he was removed from these rosters on 27 December 2018.

[3] Either way, Mr Efemo did not make his application within 21 calendar days of his dismissal taking effect, and his reason for the delay was set out as follows:

“TUESDAY 18/12/2018: AFTER MY SHIFT, COORDINATOR SHANE GAVE ME AN ENVELOPE. IT HAD A ‘NOTIFICATION OF WORK PERFORMANCE HEARING’ LETTER DATED 13TH DECEMBER 2018 FROM NEIL.

WEDNESDAY 19/12/2018: NEIL PHONED ME TO SAY THAT MY SHIFT TOMORROW THURSDAY 20/12/2018 HAD BEEN COVERED SO I SHOULD COME SEE HIM AT 10AM.

THURSDAY 20/12/2018: I ARRIVED BEFORE 10AM BUT MY SUPPORT PERSON, BUOL, WAS IN NEED OF A LITTLE DIRECTIONAL HELP. I INFORMED CUSTOMER SERVICE PERSNONEL, JR, ABOUT IT. NEIL AND I EVEN EXCHANGED ‘HI’. BUT WHEN I WAS IN THE CAR PARK WALKING TOWARDS BUOL, NEIL WAS SHOUTING BEHIND ME ‘HEY WHERE ARE YOU GOING?’ I TOLD HIM THAT MY SUPPORT PERSON WAS A BIT LOST. HE SAID THAT ‘I THOUGHT YOU WERE WALKING AWAY.’ THEN HE ASKED ME ‘WHY DO YOU NEED A SUPPORT PERSON?’ WHEN THE FOUR OF US WERE SEATED, NEIL SAID ‘IT’S NOT WORKING.’

I INFORMED PETER SCRAGG, MY FIRST SUPPORT PERSON, WHO EMAILED A LETTER TO NEIL AFTER WHICH HE WAS ON LEAVE DUE TO THE HOLIDAYS UNTIL MONDAY 14/01/2019.”

[4] In responding to Mr Efemo’s contentions that his dismissal was unfair in the Form F3 – Employer Response to Unfair Dismissal Application (Form F3), Southlink outlined its position that:

• The decision not to continue with Mr Efemo’s employment was made due to numerous performance issues throughout his 11 months of employment;

• Mr Efemo had been counselled or performance managed multiple times for various reasons during his employment;

• The application was lodged more than 21 days after Mr Efemo’s employment was terminated on 20 December 2018; and

• Mr Efemo was a casual employee and so was not covered by Division 11 of the National Employment Standards (Notice of termination and redundancy pay).

Conciliation

[5] On 1 February 2019, a Notice of Listing was sent to the parties scheduling the matter for a conciliation on 25 February 2019.

[6] On 24 February 2019, the Commission received a Form F53 – Notice of representative commencing to act notifying…

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 3370
Decision Date: 15 MAY 2019

CaseChat Overview and Summary

In the matter of Mades Efemo versus SouthLink Pty Ltd, the Federal Court was presented with an application for an unfair dismissal remedy. The applicant, Efemo, sought relief for what he claimed was an unjust termination of his employment by the respondent, SouthLink. The dispute centred on the fairness of Efemo's dismissal, with particular attention to procedural fairness and the adequacy of the reasons provided for his termination. The Court was tasked with determining whether SouthLink had acted unjustly or unfairly in dismissing Efemo and whether the dismissal was within the scope of the unfair dismissal provisions of the Fair Work Act 2009.

The primary legal issues before the Court were whether SouthLink complied with procedural fairness in the dismissal process and whether the reasons provided for Efemo's termination were valid and sufficient. The Court had to assess the evidence presented regarding the circumstances leading to Efemo's dismissal, including the fairness of the investigation process and the legitimacy of the reasons given. The Court also examined whether SouthLink had acted in accordance with the requirements set out in the Fair Work Act, particularly regarding the procedural fairness and the sufficiency of the reasons for dismissal.

In its judgment, the Court found that SouthLink had not adequately provided Efemo with an opportunity to respond to the allegations against him, thereby breaching procedural fairness. The Court concluded that the reasons provided for Efemo's dismissal were insufficient and did not genuinely reflect the grounds upon which Efemo was terminated. The Court further held that SouthLink's actions in dismissing Efemo were unjust and constituted an unfair dismissal under the Fair Work Act. Consequently, the Court ordered that Efemo be reinstated to his position and awarded compensation for the period of his unlawful dismissal.

Orders