Michael Costigan v KOR Equipment Solutions Pty Ltd - [2022] FWC 176

[2022] FWC 176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s. 394—Unfair dismissal

Michael Costigan
v

KOR Equipment Solutions Pty Ltd

(U2021/8444)

COMMISSIONER MIRABELLA

MELBOURNE, 9 MARCH 2022

Application for an unfair dismissal remedy.

On 20 September 2021, Mr Michael Costigan filed an application for an unfair dismissal remedy (the application) pursuant to s. 394 of the Fair Work Act 2009 (the Act), his employment having ceased on 31 August 2021.

Mr Costigan alleges that he was dismissed in contravention of s. 385 of the Act by KOR Equipment Solutions Pty Ltd (KOR) and seeks compensation.

KOR has raised an objection to Mr Costigan’s application. It says that Mr Costigan resigned and was not dismissed. Mr Costigan acknowledges that he resigned but says that he had no choice and was forced to resign due to the conduct of KOR. Where the jurisdictional objection is not upheld, KOR says that Mr Costigan’s dismissal was not harsh, unjust or unreasonable.

This objection needs to be determined by the Fair Work Commission (the Commission) before there can be any consideration of the merits of Mr Costigan’s application. That is because only a person who has been dismissed is able to make an unfair dismissal application.[1]

KOR did not consent to take part in a conciliation conducted by a Commission staff member due to their jurisdictional objection to the application. Consequently, this matter was allocated to me for case management on 19 October 2021. I issued directions for the filing and service of material on 25 October 2021 and conducted a Determinative Conference in the matter by video using Microsoft Teams on 15 December 2021. Prior to the Determinative Conference, I granted permission under s. 596 of the Act to KOR.

Some facts are agreed although others are in dispute. On the disputed facts, issues of credit are relevant.

Background

KOR is an import and distribution business. The industrial equipment they import are truck mounted vacuum and hydro-excavation units which they distribute throughout Australia and New Zealand.

Mr Costigan commenced employment by KOR on 3 August 2020. When his employment with KOR ceased on 31 August 2021, he was working as a Business Analyst.

On 26 May 2021, Mr Costigan and Mr Sean Roberts, the General Manager and Chief Financial Officer of KOR, had a meeting (the May meeting). Both parties disagree on the nature of this meeting. Mr Costigan says that this was an informal meeting. KOR says that, during this meeting, Mr Costigan was informed that his performance in the job was inadequate whilst noting several errors he had made in his work.

Mr Roberts and Mr Costigan met again on 21 June 2021 (the June meeting). Mr Costigan says that this was a “routine KPI meeting” but Mr Roberts says this was a “formal management meeting”, constituting a formal warning. Mr Costigan denies that he was given a formal warning but notes that Mr Roberts did raise some issues of concern regarding Mr Costigan’s work.[2]

On 22 July 2021, Mr…

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: [2022] FWC 176
Decision Date

CaseChat Overview and Summary

Michael Costigan filed an application for an unfair dismissal remedy against KOR Equipment Solutions Pty Ltd, claiming that he was dismissed in contravention of s. 385 of the Fair Work Act 2009. KOR raised an objection to the application, arguing that Costigan resigned and was not dismissed. The primary issue for the Fair Work Commission (the Commission) was whether Costigan was dismissed by KOR or if he resigned, and if he did resign, whether it was a forced resignation. If Costigan was dismissed, the Commission also had to determine whether the dismissal was harsh, unjust, or unreasonable. The Commission found that Costigan was not dismissed by KOR. The employer had already decided to terminate Costigan's employment but offered him the option to resign instead. This offer was made to allow Costigan to save face and secure a reference from KOR, which he believed would improve his chances of finding new employment. The Commission concluded that Costigan's resignation was not forced by KOR's conduct. Even if Costigan had not resigned, KOR would have dismissed him. Therefore, the application for unfair dismissal was dismissed.

Orders