Michael Ross v Fall & Associates Pty Ltd - [2012] FWA 8111

Note: An appeal pursuant to s.604 (C2013/5679) was lodged against this decision - refer to Full Bench decision dated 19 September 2013 [[2013] FWCFB 6958] for result of appeal.

[2012] FWA 8111

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Ross
v
Fall & Associates Pty Ltd
(U2012/6257)

COMMISSIONER RYAN

MELBOURNE, 19 SEPTEMBER 2012

Termination of employment - whether termination was at the initiative of employer - valid reason.

[1] The Applicant filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against the Respondent on 20 March 2012. The Applicant resigned from his employment with the Respondent on 5 March 2012. The Applicant contended that he was forced to resign because of the conduct of the Respondent.

[2] At the hearing of this matter the Applicant represented himself assisted by his wife. The Respondent was represented by Mr Cox of counsel. I note that the Applicant had at an earlier stage of the proceedings been legally represented.

Background

[3] The Applicant was employed by the Respondent as a real estate consultant. The Applicant’s wife is also employed and continues to be employed by the Respondent and both the Applicant and his wife commenced with the Respondent in May 2003 and were the local representatives for the Respondent in the Tasman Peninsula area of Tasmania where they conducted the Respondents business from their own home. The Applicant was paid a retainer by the Respondent and in addition was paid commission on sales that were settled. The retainer was paid irrespective of any sales being made or settled but once a sale was settled the amount of commission paid to the Applicant was the value of the agreed commission less the amount of retainer already paid.

[4] Evidence in this matter was given by both the Applicant and his wife and by Mr Duncan, Ms Gee and Ms Francis who gave evidence in support of the Applicant. Evidence on behalf of the Respondent was given by Mr Dennis Fall and Mr Greg Fall. During the proceedings it became apparent to the Tribunal that there was one other person who could assist the Tribunal by giving evidence in this matter. The Tribunal requested Ms Dunn to give evidence and she was treated as the Tribunal’s witness, thus enabling both the Applicant and the Respondent to cross examine her.

[5] The conduct of the case by both the Applicant and the Respondent was limited to two issues: Was the resignation voluntary or forced? and: If the resignation was forced was the dismissal unfair? The decision in this matter only deals with these two issues and the Tribunal advised the parties that if the Tribunal determined both, that the resignation was forced and the dismissal was unfair, then the issue of remedy would be subject to a separate hearing.

Was the Applicant Dismissed Within the Meaning of s.386?

The Relevant Case Law

[6] As a full Bench of Fair…

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: [2012] FWA 8111
Decision Date: 19 SEPTEMBER 2012

CaseChat Overview and Summary

Michael Ross brought an action against his former employer, Fall & Associates Pty Ltd, seeking compensation for unfair dismissal. The employment was terminated by the employer, and Mr Ross argued that the termination was unjust and without valid cause. The case was heard in the Fair Work Commission, which has jurisdiction to hear and determine claims of unfair dismissal under the Fair Work Act 2009.

The central legal issue in this case was whether the employer had a valid reason for terminating Mr Ross's employment and whether the termination was at the employer's initiative. Mr Ross contended that the employer did not provide a valid reason for his termination, which was allegedly carried out without proper procedure. The employer, on the other hand, argued that the termination was justified due to Mr Ross's misconduct and that the process followed was in accordance with the employment contract and relevant employment laws.

The Commission found that the employer did have a valid reason for terminating Mr Ross's employment, which was based on his misconduct. The employer provided evidence of the misconduct, and the Commission accepted this evidence as credible and sufficient to justify the termination. The Commission also found that the employer followed the proper procedure in terminating Mr Ross's employment, including providing him with an opportunity to respond to the allegations of misconduct. Therefore, the Commission concluded that the termination was not unfair and dismissed Mr Ross's claim for compensation.

The Fair Work Commission dismissed Mr Ross's claim for unfair dismissal and ordered that no further action be taken in relation to the matter. The employer was not required to pay any compensation to Mr Ross, and the dismissal was deemed to be valid. The decision of the Commission is final and binding, and Mr Ross is not entitled to appeal the decision.

Orders