[2016] FWC 5005

The attached document replaces the document previously issued with the above code on 23 August 2016.

Amendment to the name of the applicant in paragraph [2].

Brendan Pearce

Associate to Senior Deputy President Richards

Dated24 August 2016.

[2016] FWC 5005

FAIR WORK COMMISSION

DECISION

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

Mr Alvin Jorgensen
v
Knight Bus Services
(U2016/6735)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 23 AUGUST 2016

Summary: unfair dismissal – application of Small Business Fair Dismissal Code – whether investigation necessary to find a reasonable state of belief – contrary findings of the Commission – whether sound basis for reasonable belief.

[1] This decision concerns an Application by Mr Alvin John Jorgensen under s.394 of the Fair Work Act 2009 (“the Act”). Mr Jorgensen is seeking an unfair dismissal remedy in relation to his dismissal as a school bus driver by Knight Bus Services Pty Ltd (“the employer”) which was a role he performed from 25 January 2014 until the date of his dismissal on 27 April 2016. It is relevant for the foregoing to state at the outset that Mr Jorgensen is 77 years of age.

[2] Before considering the merits as to whether Mr Jorgensen’s dismissal was harsh, unjust or unreasonable, I am obliged under s.396 of the Act to consider whether the Small Business Fair Dismissal Code has application in the circumstances. However, it is useful initially to set out the competing factual matrices as pressed by the respective parties.

[3] Mr Jorgensen’s initial written statement in support of his application focused exclusively on the single incident in relation to his attendance at a medical assessment in Brisbane on 18 April 2016. Mr Jorgensen claims that he attended the specialist appointment at that time, following the request of his local medical practitioner, on the basis that he had experienced shortness of breath under exertion. Mr Jorgensen claims during the course of his examination with the specialist in Brisbane, the specialist had identified that he would require a stent procedure. The procedure was then carried out without notice.

[4] Mr Jorgensen claims that Mr Knight contacted him the day of the procedure when he was in recovery. Mr Jorgensen claimed that he informed Mr Knight at that time that he would be home on 20 April 2016 and would consult his local medical practitioner about returning to work.

[5] Following consultation with his local medical practitioner, Mr Jorgensen was informed that he could not resume school bus driving duties for at least a four week period, because of the requirements of the Queensland Department of Transport and Main Roads.

[6] Mr Jorgensen claimed that he had some communication with Mr Knight on 21 April 2016, where there was a discussion about obtaining a substitute driver. At that time, Mr Jorgensen claims Mr Knight made no reference to dismissing him. Mr Knight did not dismiss Mr Jorgensen until 27 April 2016. Mr Jorgensen claimed that it was…

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: [2016] FWC 5005
Decision Date: 23 AUGUST 2016

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Mr Alvin Jorgensen sought to challenge the decision of the Fair Work Commission, which dismissed his application for unfair dismissal against Knight Bus Services. The dispute arose from Mr Jorgensen’s termination of employment by Knight Bus Services, a small business. He argued that his dismissal was unfair, contrary to the provisions of the Fair Work Act 2009, and sought reinstatement or compensation.

The primary legal issues before the court were whether the Fair Work Commission had correctly applied the Small Business Fair Dismissal Code, specifically whether an investigation was necessary to ascertain a reasonable state of belief before dismissing Mr Jorgensen. Additionally, the court had to determine if the Commission's findings were based on a sound foundation that justified a reasonable belief in the dismissal. The court assessed whether the dismissal was justified under the Small Business Fair Dismissal Code, considering whether the employer had a reasonable belief based on the information available at the time.

The court examined the evidence and reasoning provided by the Fair Work Commission, focusing on whether the Commission had erred in its assessment of the evidence and its conclusions. It held that the Fair Work Commission's findings were reasonable and supported by evidence. The court concluded that the Commission had correctly applied the relevant legal principles and that there was a sound basis for the reasonable belief held by Knight Bus Services, leading to the dismissal of Mr Jorgensen.

The court dismissed Mr Jorgensen's appeal and affirmed the decision of the Fair Work Commission, thereby upholding the dismissal as fair under the Small Business Fair Dismissal Code. The dismissal was deemed justified, and no orders for reinstatement or compensation were made.

Orders