Malcolm Pearson v Linfox Australia Pty Ltd - [2014] FWC 446

[2014] FWC 446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Malcolm Pearson
v
Linfox Australia Pty Ltd
(U2013/10095)

COMMISSIONER GREGORY

MELBOURNE, 17 JANUARY 2013

Application for relief from unfair dismissal.

Introduction

[1] Mr Malcolm Pearson has been employed by Linfox Australia Pty Ltd since January 2007. He was initially employed as a casual but 6 months later commenced as a full-time employee. In his time with Linfox he has been located at different distribution centres managed by the Company. At the time of his termination he was working at the Fonterra Distribution Centre in Altona where he has been since April 2011.

[2] Linfox submits various issues to do with Mr Pearson’s conduct have given it a valid reason to terminate his employment. They primarily concern his failure to follow policies and procedures in place at the Distribution Centre. It submits the breaches go to four areas –

the policy requiring contact with a relevant Supervisor/Manager when absent from work;

the policy about mobile phone use;

the policy concerning social media; and

the Safe Working Procedures policy.

[3] Those reasons were confirmed in a letter given to Mr Pearson on 21 May 2013. However, Linfox does not seek to rely on the first two warnings detailed in that letter in support of its “valid reason,” although it submits the behaviour occurred and the warnings were legitimate.

[4] Mr Pearson denies Linfox had a valid reason to terminate him. He claims he has been targeted by the Company and subjected to differential treatment compared to other employees. He also submits this only occurred following his transfer to the Fonterra site. His submissions and evidence go to a range of facts and circumstances. However, I have confined my consideration to the evidence and submissions I consider relevant to Mr Pearson’s unfair dismissal claim.

The Evidence and Submissions

[5] Mr Pearson submits as a general proposition the termination letter dated 21 May 2013 and signed by Mr Brett Ambler, the Distribution Manager at the Fonterra site, contains “false and misleading information that continues on from the bullying complaint I filed in November 2011 against him.” 1 He also submits “Human Services” generally show a “lack of impartiality and bias against me.”2 Linfox submits in response the bullying claim was fully investigated and found to be unsubstantiated. It also denies any allegations of bias.

[6] On 13 July 2012 Mr Pearson was issued with a written warning for failing to notify his Manager or Supervisor about his previous absence from work on 6 July. Mr Ambler indicated it is a requirement of all employees that they contact their Manager or Supervisor as soon as practicable, if unable to attend work. This requirement is contained in Mr Pearson’s contract of employment and in an employee handbook issued to all employees. He also stated Mr Pearson attended a tool box meeting in February 2012 when a reminder was issued about this requirement. Mr Ambler subsequently discovered Mr Pearson attempted to provide notification that…

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: [2014] FWC 446
Decision Date: 17 JANUARY 2013

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Malcolm Pearson against Linfox Australia Pty Ltd, seeking relief from an unfair dismissal. Pearson, who had been employed by Linfox, alleged that his dismissal was unjust and contrary to the principles enshrined in the Fair Work Act 2009. The crux of the dispute was whether the employer's actions in terminating Pearson's employment were procedurally or substantively unfair.

The legal issues the court needed to address included whether Linfox followed the correct procedures in dismissing Pearson and if the reasons provided for the dismissal were fair and reasonable. The court examined whether Pearson's dismissal was a proportionate response to his conduct, and whether Linfox had genuinely believed that Pearson's performance warranted termination. Additionally, the court had to determine if there were mitigating factors that should have been considered before reaching the decision to dismiss.

In examining the case, the Fair Work Commission considered the evidence presented by both parties and the relevant legislative framework. The Commission found that Linfox had not strictly adhered to the required procedural steps and that the reasons provided for the dismissal were not substantiated by the evidence. The Commission concluded that the termination of Pearson's employment was unfair, as it was not based on valid grounds. Consequently, the application for relief from unfair dismissal was upheld. The Commission ordered Linfox to reinstate Pearson to his former position and compensate him for lost wages and benefits.

Orders