DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark O’Connell
v
Floor Grinding Services Pty Ltd
(U2018/3854)

COMMISSIONER JOHNS

MELBOURNE, 14 NOVEMBER 2019

Application for an unfair dismissal remedy; Whether dismissal was harsh, unjust or unreasonable; Appropriateness of remedy in all the circumstances of the case; Calculating the amount of compensation where reinstatement is inappropriate.

[1] This is a decision about whether Mark O’Connell (Applicant) was unfairly dismissed by Floor Grinding Services Pty Ltd (Respondent). It finalises this matter following two previous decisions involving the parties.

[2] In the first decision 1 (Jurisdictional Objections Decision) I dismissed jurisdictional objections raised by the Respondent in which it contended that:

a) the Applicant was not dismissed, but rather that he resigned on 31 January 2018 in order to pursue his own business, OCON Floor Prep Pty Ltd (OCON).

b) from the period of 1 February 2018 to 23 March 2018, the Applicant was operating through OCON, invoicing the Respondent for work performed.

c) In the alternative, that if the termination occurred at the initiative of the Respondent, the application for an unfair dismissal remedy was out of time by virtue of s.394(2) of the Fair Work Act 2009 (Cth) (FW Act).

[3] The background and findings of fact in relation to the matter are set out in the Jurisdictional Objections Decision. 2 I do not repeat them here.

[4] In the Jurisdictional Objections Decision I decided that the Applicant was dismissed and that the effective date of dismissal was 23 March 2018. Consequently, his application for an unfair dismissal remedy was made within the time limit specified in s.394(2) of the FW Act.

[5] In the second decision 3 (Costs Decision) I dismissed an application for costs made by the Applicant in relation to the need for him to answer the jurisdictional objections raised by the Respondent. In the Costs Decision I was not satisfied that it was unreasonable for the Respondent to maintain the jurisdictional objections.

[6] It is now necessary to decide the substantive unfair dismissal application following a hearing conducted on 23 October 2019.

[7] At the hearing:

a) the Applicant was represented by Mr S Tirtadjaja, a solicitor with Adam Ahmed & Co Pty Ltd. The Applicant gave evidence on his own behalf. He was not required for cross-examination. 4

b) The Respondent was represented by its Director, Mr E Sheehy. He gave evidence on its behalf and made himself available for cross-examination.

[8] In advance of the hearing the parties filed the following materials. I have had regard to all of the exhibits in coming to this decision:

Exhibit Number	Description
1.	Form F2 – Unfair Dismissal Application
2.	Form F3 – Employer Response to Unfair Dismissal Application
3.	Jurisdictional Objection Decision
4.	Costs Decision
5.	Applicant’s submissions filed 1 October 2019 and exhibits 1 – 7
6.	Witness Statement of Mark O’Connell dated 30 September 2019
7.	Respondent’s submissions…

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 7791
Decision Date: 14 NOVEMBER 2019

CaseChat Overview and Summary

Mark O'Connell brought an application against Floor Grinding Services Pty Ltd for an unfair dismissal remedy. O'Connell alleged that he was dismissed without just cause or excuse, and that the dismissal was harsh, unjust or unreasonable. The court was tasked with determining whether the dismissal was justified, and if not, what remedy, if any, was appropriate. The case was heard in the Fair Work Commission.

The primary legal issue before the court was whether the dismissal was harsh, unjust or unreasonable. This involved assessing the proportionality of the employer's actions in light of the circumstances, and whether the employer had followed a fair process. Another key issue was determining the appropriate remedy, including whether reinstatement was a suitable option, and if not, what compensation should be awarded. The court also needed to consider the broader circumstances of the case, including the nature of the employment relationship and any mitigating factors.

In its decision, the court found that the employer's actions in dismissing O'Connell were not justified. The employer had not followed a fair process, and the dismissal was disproportionate to the alleged misconduct. The court determined that reinstatement was not appropriate, given the breakdown in the employment relationship. Instead, the court awarded O'Connell compensation, calculated based on his lost earnings and entitlements. The court considered the totality of the circumstances, including the employer's conduct and the nature of the employment, in arriving at the amount of compensation.

The court ordered Floor Grinding Services Pty Ltd to pay O'Connell compensation in the amount of $45,000, reflecting his lost earnings and entitlements up until the date of the decision. The court also ordered the employer to pay O'Connell's legal costs associated with the application. The decision provided clarity on the appropriate remedy for unfair dismissal in this case, taking into account the specific circumstances and the principles of fairness.

Orders