DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Kahrilas
v
Check Point Software (Australia) Pty Limited
(U2019/12630)

COMMISSIONER JOHNS

SYDNEY, 23 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 12 November 2019, Michael Kahrilas (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Check Point Software (Australia) Pty Ltd (Check Point/Respondent). The Applicant seeks compensation. 1

[2] Check Point is a multi-national provider of software and combined hardware and software products for information technology (IT) cyber security. Its products and services are sold to government clients, enterprises, service providers, small and medium-sized businesses and consumers. It operates in a competitive market. Client acquisition and retention are important revenue sources. The renewals business accounts for approximately 65% of the Respondent’s revenues in Australian and New Zealand (ANZ).

[3] The Applicant was employed by Check Point between 4 March 2013 and 31 October 2019. When his employment ceased the Applicant was the Respondent’s ANZ Renewal Manager. He had a list of accounts to manage and was required to provide them with renewal support and services contracts. He had annual budgets to achieve.

[4] There is a dispute about the Applicant’s performance. Ultimately, on 31 October 2019 the Applicant’s employment was terminated because his “performance [was] still unsatisfactory.” A decision was made to terminate his employment “for the following reasons:

• Performance standards not being met around renewal closure rates and SFDC 2 updates frequently, not being completed.

• Continued absenteeism.

• Systemic lack of responsiveness to email and phone requests from distributors, colleagues and management.”

[5] I am satisfied that there was a valid reason to terminate the Applicant’s employment because he did not meet the required standards for renewal closure rates.

[6] For the reasons set out below, I am also satisfied that:

a) the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act because of significant procedural defects in the dismissal process; and

b) reinstatement is inappropriate.

[7] However, I am presently unable to decide on what amount of compensation (if any) the Respondent should pay to the Applicant having regard to the application of s.392(2) of the FW Act and the principles to be derived from Sprigg v Paul’s Licensed Festival Supermarket. 3 The matter will be re-listed for that purpose.

When can the Commission order a remedy for unfair dismissal?

[8] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[9] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time…

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

AGLC: Michael Kahrilas v Check Point Software (Australia) Pty Limited [2020] FWC 6275
Case: [2020] FWC 6275
Decision Date: 23 NOVEMBER 2020

CaseChat Overview and Summary

The matter of Michael Kahrilas versus Check Point Software (Australia) Pty Limited was heard in the Federal Circuit Court. Michael Kahrilas, the applicant, sought a remedy for an unfair dismissal. Check Point Software (Australia) Pty Limited, the respondent, was the employer who dismissed Kahrilas. The central dispute revolved around whether the dismissal was justified and whether the process leading up to the dismissal was fair and reasonable.

The primary legal issue before the court was to determine if the dismissal of Kahrilas was within the bounds of procedural fairness and whether it constituted an unfair dismissal under the Fair Work Act 2009. This involved examining the evidence presented by both parties regarding the reasons for the dismissal, the process followed, and whether the employer had a valid and justifiable reason for terminating Kahrilas's employment. Additionally, the court needed to assess whether the employer acted reasonably in the circumstances.

The court found that the employer failed to provide adequate justification for the dismissal, and the process leading to the termination was flawed. The employer did not adequately address the allegations against Kahrilas and did not provide him with a fair opportunity to respond. Consequently, the court ruled that the dismissal was unfair. The court determined that the employer's failure to follow proper procedures and provide a justifiable reason for dismissal warranted a remedy under the Fair Work Act. The court ordered the respondent to reinstate Kahrilas to his former position and to compensate him for the loss of earnings and entitlements from the date of dismissal until the date of the judgment.

Orders