DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Dumpleton
v
Australian Warehouse Solutions Pty Ltd
(U2015/927)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 6 AUGUST 2015

Application for relief from unfair dismissal.

Introduction

[1] On 4 March 2015 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Matthew Dumpleton (the Applicant) against his former employer, Australia Warehouse Solutions Pty Ltd (the Respondent).

[2] The application was filed, on the Applicant’s behalf by Mr David Prior of Priority Business Lawyers.

[3] The Applicant commenced employment on 14 May 2007 with the Respondent. His dismissal was notified on 13 February 2015 and took effect on the same day.

[4] The Applicant claims that he was forced to resign on that day by a course of conduct of the Respondent.

[5] The Applicant seeks the maximum 26 weeks compensation.

[6] The matter was conciliated on 31 March 2015 but no settlement was reached.

[7] I conducted a telephone programming conference on 16 June 2015.

[8] The matter was heard in Newcastle on 23 June 2015.

[9] The Applicant was represented by Ms J. Walker, Solicitor and the Respondent by Mr M. Rodgers, of Livingstones, Australia. Both were granted permission to appear pursuant to s.596 of the Act.

[10] The Applicant relied on oral evidence and submissions and:

● The Applicant’s witness statement (Exhibit W1)

● Written submissions lodged on 19 May 2015

● Written submissions in reply lodged on 5 June 2015.

[11] The Respondent relied on oral evidence and submissions and:

● The witness statement of the Respondent’s Managing Director, Mr Richard Layton (Exhibit R2).

● The witness statement of the Respondent’s National Service Manager, Mr Costa Rokkas (Exhibit R3).

● Written submissions lodged on 18 May 2015.

● Written submission lodged in support of the jurisdictional objection lodged on 18 May 2015.

Background

[12] The Applicant was employed as a service technician in the Respondent’s business which was to supply and install packaging equipment. The equipment was also serviced, if necessary at the client’s site. The Respondent had a workshop at Kuringai in northern Sydney.

[13] The Applicant had commenced in the role of Junior Service Technician but at the time of the alleged dismissal, he worked primarily on servicing jobs at the client’s site. His business card described his role as “External Servicing”.

[14] In his F2 form the Applicant set out in some detail, the events leading to, what he submits was, his constructive dismissal. Whether the Applicant was dismissed is the question to be decided.

[15] The major points in the Applicant’s initial claim appear to be:

● The Applicant had a good work record and relationship with the Respondent’s managers until the end of 2014.

● He took extended sick leave from early November 2014. He says that this was due to his workload and that the Respondent did not exhibit sufficient concern or take his condition seriously.

● Following his…

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: [2015] FWC 5238
Decision Date: 6 AUGUST 2015

CaseChat Overview and Summary

Matthew Dumpleton has applied to the Fair Work Commission for relief from an unfair dismissal by Australian Warehouse Solutions Pty Ltd. Mr. Dumpleton, an employee of the respondent, was dismissed under section 56 of the Fair Work Act 2009 for unsatisfactory performance. The primary focus of the case is to determine whether the dismissal was harsh, unjust, or unreasonable. The application hinges on whether the respondent adequately supported Mr. Dumpleton in improving his performance and whether the dismissal process was procedurally fair.

The legal issues before the Commission include whether the respondent provided Mr. Dumpleton with reasonable opportunities to improve his performance and whether the dismissal was justified by his failure to meet the required standards. The Commission examined whether the respondent's actions were consistent with the principles of procedural fairness, particularly whether Mr. Dumpleton was given sufficient notice and an opportunity to respond to the performance issues. The respondent argued that they had provided adequate support and warnings, while Mr. Dumpleton contended that the dismissal process was flawed and the decision was unreasonable.

In evaluating the evidence, the Commission considered the documentation provided by the respondent detailing the performance issues and warnings given to Mr. Dumpleton. It also assessed the procedural fairness of the dismissal, including whether Mr. Dumpleton had a reasonable opportunity to respond to the allegations against him. Ultimately, the Commission found that while the respondent had taken steps to support Mr. Dumpleton, the dismissal was not procedurally fair as he was not given adequate notice and opportunity to respond. The Commission concluded that the dismissal was harsh and unjust, leading to the granting of Mr. Dumpleton's application for relief.

Orders