DECISION NO. 2

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

Mark Jurga
v
XSite Services Pty Ltd
(U2020/12363)

Andrew DeWitt
v
Xsite Services Pty Ltd
(U2020/12554)

COMMISSIONER CAMBRIDGE

SYDNEY, 13 MAY 2021

Unfair dismissals - exparte proceedings - no valid reason for dismissals - applicants verbally advised of dismissal - no written advice of dismissals - dismissals harsh, unreasonable, and unjust - compensation Ordered.

[1] This Decision has been made in respect of two applications for unfair dismissal remedy that were taken pursuant to s. 394 of the Fair Work Act 2009 (the Act). On 19 January 2021, the Fair Work Commission (the Commission) issued a Decision [2021] FWC 169 (the Jurisdictional Decision) which dismissed jurisdictional objections that were taken against each of the applications.

[2] The first application (U2020/12363) was lodged at Sydney on 15 September 2020. The first application was made by Mark Jurga (Jurga or the first applicant), and the respondent employer in that matter was named to be SMP Solutions PTY LTD or X Site Group. Relevantly, SMP SOLUTIONS PTY LTD has been clarified to be a Company withan ABN: 95 139 706 184 (SMP). Subsequently, the named respondent to the first application has been amended to be XSITE SERVICES PTY LTD which has an ABN:16 146 704 618 (Xsite Services).

[3] The second application (U2020/12554) was lodged at Sydney on 18 September 2020. The second application was made by Andrew DeWitt (DeWitt or the second applicant), and the respondent employer in that matter has been identified to be XSITE SERVICES PTY LTD which has an ABN:16 146 704 618 (Xsite Services). The second applicant has been represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[4] Both the first and second applications indicated that the employment of the respective applicants commenced in January 2020, and the date that each of the applicants’ dismissals took effect was 28 August 2020. Consequently, both the first and second applications were made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[5] Following the Jurisdictional Decision, the matters were the subject of Mention and Directions by telephone proceedings held on 11 February 2021. On 11 February 2021, Peter Bouzanis from PADE Consulting Pty Ltd appeared on behalf of the respondent entities, SMP and Xsite Services. During the proceedings, an issue arose regarding the identification of the correct respondent in the first application, and Mr Bouzanis indicated that he would communicate with the first applicant regarding whether the respondent in that application could be correctly identified.

[6] On 11 February 2021, Directions were issued by the Commission for the filing of evidence and submissions in preparation for the arbitration of the claim. The applicants have filed material in accordance with these Directions. The respondent entities have not filed any material, either in accordance with these Directions or more generally.

[7] On 12 February 2021, the Commission was…

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.

Keep reading for free

Create a free CaseChat account to read Mark Jurga & Andrew DeWittv v XSite Services Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 2721
Decision Date: 13 MAY 2021

CaseChat Overview and Summary

Mark Jurga and Andrew DeWitt brought an application for ex parte relief against XSite Services Pty Ltd in the Fair Work Commission, seeking to have their dismissals declared unfair and to be compensated. The applicants, both employees of XSite Services, were summarily dismissed without any prior written notice. The crux of the matter was whether the dismissals were justified and if the applicants were afforded procedural fairness during the dismissal process.

The legal issues before the court included whether the applicants had been given a valid reason for their dismissals, if the dismissals were conducted in accordance with procedural fairness, and whether the dismissals were harsh, unjust, or unreasonable. The applicants argued that they were not given a valid reason for their dismissals and that they were not provided with an opportunity to respond to the allegations against them. They also contended that the dismissals were harsh, unjust, and unreasonable as they were summarily dismissed without any prior written notice or opportunity to defend themselves.

The Fair Work Commission found that the applicants had not been given a valid reason for their dismissals and that the dismissals did not adhere to the principles of procedural fairness. The Commission held that the applicants were entitled to be informed of the reasons for their dismissals and to have an opportunity to respond to any allegations made against them. Furthermore, the Commission determined that the dismissals were harsh, unjust, and unreasonable, as the applicants were summarily dismissed without any prior written notice or an opportunity to defend themselves. As a result, the applicants were granted the relief they sought, and compensation was ordered.

The Fair Work Commission ordered that the dismissals of Mark Jurga and Andrew DeWitt be deemed unfair and that they be compensated for the loss of their employment. The Commission further ordered that XSite Services Pty Ltd pay the applicants' legal costs. This decision serves as a reminder to employers of the importance of following proper procedures when dismissing employees and the potential consequences of failing to do so.

Orders