DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michael Rosser
v
Toll Transport Pty Ltd
(U2020/11287)

COMMISSIONER CAMBRIDGE

SYDNEY, 16 APRIL 2021

Unfair dismissal - misconduct involving dishonesty - valid reason for dismissal - no significant procedural deficiencies - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 19 August 2020. The application was filed by the Transport Workers’ Union of Australia (TWU) and it was made on behalf of Michael Louis Jack Rosser (the applicant). The respondent employer is Toll Transport Pty Ltd (the employer or Toll).

[2] The application indicated that the date that the applicant’s dismissal took effect was 3 August 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act.

[3] The matter was not resolved at conciliation, and on 22 September 2020, the Fair Work Commission (the Commission) issued Directions for the Parties to file and serve evidence and other materials prior to an arbitration Hearing/Conference that was fixed for 10 December 2020.

[4] On 13 October 2020, the TWU provided advice to the Commission and the employer that it was withdrawing its representation of the applicant, and that the applicant had been advised accordingly. On 21 October 2020, Adero Law filed a Notice that it was acting on behalf of the applicant and would seek permission to participate in further proceedings. On 13 November 2020, King & Wood Mallesons filed a notice that it was acting on behalf of the employer and would seek permission to participate in further proceedings.

[5] At the commencement of the Hearing, which was conducted in Sydney on 10 December 2020, the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. At the Hearing, Mr T Hakkinen, solicitor from Adero Law appeared for the applicant, and he introduced evidence from the applicant as the only witness called in support of the unfair dismissal claim. The employer was represented by Mr J Wells, solicitor from King & Wood Mallesons lawyers. Mr Wells called two witnesses who provided evidence on behalf of the employer.

[6] At the conclusion of the Hearing on 10 December, the evidence from each side had been finalised. However, at the request of the Parties, a timetable for the provision of documentary submission materials was established, which was completed when the applicant’s lawyers filed closing submissions in reply on 9 February 2021.

Background

[7] The applicant worked for the employer for a period of 3 years and 8 months. The applicant was employed as a casual Truck Driver and he was engaged on a regular and systematic basis. The applicant worked for Toll at the site of the Woolworths Regional Distribution Centre located…

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 1881
Decision Date: 16 APRIL 2021

CaseChat Overview and Summary

The case of Michael Rosser v Toll Transport Pty Ltd was heard in the Fair Work Commission. The applicant, Mr. Rosser, sought relief for what he claimed was an unfair dismissal. The dispute centred around allegations of misconduct, specifically involving dishonesty, which Toll Transport claimed warranted Mr. Rosser's termination. The Commission was tasked with determining whether the dismissal was justified, whether the process was fair, and if the dismissal was harsh, unjust, or unreasonable.

The primary legal issues for the Commission to decide were whether Mr. Rosser's dismissal was justified due to misconduct and whether the employer followed appropriate procedures in terminating his employment. Additionally, the Commission needed to assess whether the dismissal was harsh, unjust, or unreasonable, considering all the circumstances. Mr. Rosser argued that the dismissal was unfair, citing procedural errors and lack of evidence for the misconduct claims. Toll Transport maintained that the dismissal was justified due to proven dishonesty and that the procedures were properly followed.

The Fair Work Commission found that the employer had established a valid reason for the dismissal based on misconduct involving dishonesty. The Commission also determined that there were no significant procedural deficiencies in the termination process. Furthermore, the Commission concluded that the dismissal was not harsh, unjust, or unreasonable given the circumstances. Therefore, the application for unfair dismissal was dismissed.

The Fair Work Commission's final orders were that the application by Michael Rosser for unfair dismissal was dismissed, with no orders for compensation or reinstatement.

Orders