Martin Green v Aldi Stores - [2022] FWC 1197

[2022] FWC 1197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Martin Green
v

Aldi Stores

(U2022/874)

COMMISSIONER MIRABELLA

MELBOURNE, 28 JUNE 2022

Application for an unfair dismissal remedy.

By his application lodged on 18 January 2022, Mr Martin Green applies under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. Mr Green was employed by Aldi Stores (ALDI) from 28 July 2014 until his dismissal on 29 December 2021.

Mr Green contends that his dismissal was harsh, unjust or unreasonable. He seeks an order for compensation and reinstatement. ALDI contends that Mr Green’s dismissal was not unfair. It says there was a valid reason to dismiss Mr Green and says that he was unable to perform his job as a consequence of the operation of the COVID-19 Mandatory Vaccination (Worker) Directions (Vic) (the Directions) because he was neither fully nor partially vaccinated against COVID-19 (or had made a booking to be vaccinated), nor did he have a medical exemption from vaccination against COVID-19.

The matter was subject to an unsuccessful conciliation on 25 March 2022 and, consequently, was listed for determinative conference before me on 17 May 2022. At the determinative conference, Mr Green was represented by Mr Gareth Rogers and ALDI was represented by Mr Ben Dudley.

Initial matters to be considered

Section 396 of the FW Act requires that certain matters be determined by the Commission in relation to any unfair dismissal remedy application before the merits of the application may be considered. In respect of the matters identified in subsections (a), (b), (c) and (d) of s.396, it was not in dispute, and I find, that:

1. The application was made within the 21-day period allowed in s.394(2)(a);

2. Mr Green was a person “protected from unfair dismissal” within the meaning of that expression in s.382 at the time of his dismissal by ALDI;

3. ALDI is not a “small business employer” and the Small Business Fair Dismissal Code is not relevant; and

4. The dismissal was not a genuine redundancy.

Background

At the determinative conference, Mr Green confirmed that he did not dispute any of the facts as set out in Mr Christopher Worland’s witness statement.

Mr Green commenced employment with ALDI on 28 July 2014.

From 19 April 2019 to 29 December 2021, Mr Green was employed in the role of Permanent Shift Manager at ALDI’s Leopold store in the Derrimut Region. Since commencing employment with ALDI, Mr Green has also been employed with ALDI as a Store Assistant, Deputy Manager and Store Management Trainee.

The role of Permanent Shift Manager is a managerial role which requires physical attendance at the relevant ALDI store. In this role, face-to-face interaction with customers and other ALDI staff is required. It is a managerial role that requires in-person oversight of ALDI’s in-store operations. The Permanent Shift Manager can be required to “stand-in” for the Assistant Store Manager or Store Manager. These roles cannot be performed from home.

In early…

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.

Continue reading Martin Green v Aldi Stores

Details

AGLC: Martin Green v Aldi Stores [2022] FWC 1197
Case: [2022] FWC 1197
Decision Date: 28 JUNE 2022

CaseChat Overview and Summary

Martin Green, an employee of Aldi Stores, applied to the Fair Work Commission for an unfair dismissal remedy. Mr Green was dismissed on 29 December 2021 and contends that his dismissal was unfair as it was harsh, unjust or unreasonable. ALDI contends that Mr Green’s dismissal was not unfair and that there was a valid reason for the dismissal. The Fair Work Act 2009 requires the Commission to consider a number of criteria in determining whether the dismissal was harsh, unjust or unreasonable. These criteria include whether there was a valid reason for dismissal related to the person’s capacity or conduct, whether the person was notified of that reason, and whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. The Commissioner found that ALDI had a valid reason to dismiss Mr Green. He had indicated that he did not intend to be vaccinated and that, therefore, he was unable to perform his role because ALDI was unable as a result of the Directions to allow him to attend the workplace. The Commissioner found that Mr Green was notified of his dismissal and was given an opportunity to respond to the reason for his dismissal. The application was dismissed.

Orders