DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Thurgood
v
Adadn Pty Ltd
(U2020/13060)

DEPUTY PRESIDENT DEAN

SYDNEY, 15 JANUARY 2021

Application for an unfair dismissal remedy – applicant unfairly dismissed - compensation ordered.

[1] This decision concerns an application made by the Mr Thurgood (the Applicant) pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy in relation to his employment with Adadn Pty Ltd (the Respondent).

[2] The Respondent did not file a Form F3 (Employer Response to Unfair Dismissal Application) and failed to attend conciliation conference which was scheduled for 29 October 2020.

[3] The matter was subsequently referred to me for hearing. Directions were issued for the parties to file and serve material and the matter was listed for hearing on 19 January 2021. The Respondent did not comply with the Directions and did not file any material.

[4] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), as the Applicant’s representative, filed submissions and a statement of the Applicant in compliance with the Directions. On 18 December 2020, Mr Fischer of the CFMMEU wrote to the Commission requesting that the matter be determined ‘on the papers’.

[5] In considering this request it is relevant that the Respondent has displayed a deliberate disregard for the Commission’s process by failing to appropriately engage and comply with directions in respect of several matters. 1

[6] In the circumstances, I consider it appropriate to determine the matter on the basis of the material filed.

BACKGROUND

[7] The background and circumstances leading to the Applicant’s dismissal set out below are established by the uncontested evidence of the Applicant.

[8] The Applicant commenced employment with the Respondent on 5 June 2019 as a full-time carpenter. His employment was governed by the Building and Construction General On‐Site Award 2010 (the Award). His verbal employment contract provided a base rate of pay of $38 per hour, travel allowance of $20 a day and a weekly payment of $100 to his account with the Australia Construction Industry Redundancy Trust.

[9] On 8 September 2020, he attended the work site as normal. At the end of the shift he and other workers were packing up tools when they were approached by Mr Ori Arslan and the following conversation took place:

“Mr Arslan: That’s it guys, you’re finishing up today.

Another worker: Why?

Mr Arslan: There’s no more work.

The Applicant: Do we get a notice period? Or redundancy?

Mr Arslan: No, ADADN is labour hire, you don’t get that.

The Applicant: Ok, thanks for having me employed.

Mr Arslan: When you get back to Brisbane, give me a call.”

[10] The Applicant found employment about two weeks after the dismissal.

SUBMISSIONS ON BEHALF OF THE APPLICANT

[11] Notwithstanding the absence of any response from the Respondent, the CFMMEU acknowledged that there may be a jurisdictional issue in this matter, being whether the dismissal was for redundancy reasons arising from a shortage of work.

[12] The…

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 99
Decision Date: 15 JANUARY 2021

CaseChat Overview and Summary

Matthew Thurgood brought an application against Adadn Pty Ltd in the Fair Work Commission, alleging that he had been unfairly dismissed. The central issue was whether the dismissal was justified and whether the company had followed the correct procedure. Thurgood claimed that he was dismissed without cause and without proper notice, and he sought compensation for the unfair dismissal.

The legal issues before the Commission were whether Adadn Pty Ltd had a valid reason to terminate Thurgood's employment and whether the company followed the correct procedures in doing so. The Commission examined the evidence regarding the circumstances leading to Thurgood's dismissal and the fairness of the decision. It also considered the procedural fairness of the dismissal, including whether Thurgood was given a reasonable opportunity to respond to the allegations against him.

After reviewing the evidence and submissions from both parties, the Commission found that Thurgood was indeed unfairly dismissed. The company did not have a valid reason to terminate his employment, and the process was not handled in a fair manner. Thurgood was not given adequate notice or the opportunity to respond to the allegations, which amounted to procedural unfairness. As a result, the Commission ordered compensation to be paid to Thurgood for the unfair dismissal. The decision emphasised the importance of following proper procedures and providing fair treatment in employment termination cases.

Orders