DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Manojkumar Pradhan
v
Amcor Flexibles (Australia) Pty Ltd
(U2021/1500)

COMMISSIONER HUNT

BRISBANE, 14 OCTOBER 2021

Application for an unfair dismissal remedy.

[1] On 23 February 2021, Mr Manojkumar Pradhan made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Amcor Flexibles (Australia) Pty Ltd (Amcor/the Respondent) was harsh, unjust or unreasonable.

[2] Mr Pradhan commenced employment with Amcor on 5 May 2009 and was dismissed on 22 February 2021. He was employed as an Extrusion Operator at the time.

[3] The matter was heard before me by Teams video on 31 May 2021. Mr Pradhan represented himself. The Respondent was represented by Mr Andrew Kite, Senior IR Business Partner and Mr Mathew Taylor, Site Manager. After obtaining the views of the parties, I decided to convene the matter as a determinative conference

Legislation

[4] Section 394 of the Act sets out:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[5] Further, ss.385 and 387 provide:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or…

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: [2021] FWC 6125
Decision Date: 14 OCTOBER 2021

CaseChat Overview and Summary

Manojkumar Pradhan brought an application for unfair dismissal against Amcor Flexibles (Australia) Pty Ltd. Pradhan had worked for Amcor for over 12 years before being terminated. The dispute centred on whether the termination was harsh, unjust, or unreasonable, and whether Amcor had a valid reason for dismissal. The matter was heard in the Fair Work Commission. The central legal issues were whether Amcor had followed the correct procedures before dismissing Pradhan, and if the termination was justified based on the employer's reasons. Pradhan argued that he was dismissed without cause and that the process was unfair. Amcor contended that the dismissal was procedurally fair and that Pradhan's termination was for valid reasons related to misconduct and capability.

The Fair Work Commission examined the procedural fairness of Amcor's actions and the validity of the reasons for dismissal. It was noted that Amcor had conducted an investigation into the allegations of misconduct against Pradhan, and Pradhan had been given an opportunity to respond. However, the Commission found that Amcor had not followed its own policies and procedures for handling such matters, which contributed to the unfairness of the dismissal process. Regarding the reasons for dismissal, the Commission concluded that while some misconduct was established, it was not of a severity warranting termination. Furthermore, there was insufficient evidence to support the allegation of capability issues. The Commission found that the termination was unjust and unreasonable, as the misconduct did not reach a level that justified dismissal, and the process was flawed.

The Fair Work Commission ordered that Pradhan be reinstated to his position with Amcor, and that Amcor pay compensation for the period of unlawful termination. Additionally, Amcor was required to apologise to Pradhan for the unfair dismissal process. This decision underscores the importance of following internal policies and procedures when dismissing an employee, and that even minor misconduct does not necessarily justify termination without careful consideration.

Orders