Mr Anthony Callahan v Graphic Impressions - [2014] FWC 437

[2014] FWC 437

The attached document replaces the document previously issued with the above code on 24 January 2014.

In paragraph [32] in the last sentence, the word “not” has been removed.

Abbygayle Lang

Associate to Deputy President Gostencnik

Dated 31 January 2014

[2014] FWC 437

FAIR WORK COMMISSION

DECISION

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

Mr Anthony Callahan
v
Graphic Impressions
(U2013/8459)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 24 JANUARY 2014

Application for relief from unfair dismissal.

Introduction

[1] Anthony Callahan (Applicant) was the Managing Director of Graphic Impressions Pty Ltd (Respondent) until he was summarily dismissed from his employment on 10 April 2013 1. He was 46 years of age at the time of his dismissal2. The reasons given by the Respondent for the dismissal were that the Respondent had discovered that the Applicant had been diverting work intended for the Respondent to other businesses; he had been authorising work to be undertaken by the Respondent but invoiced for that work externally and had been producing work using the Respondent’s resources for another business but not invoicing for that work3. On 11 April 2013 the Applicant lodged with the Fair Work Commission (Commission) an application under s. 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. This decision deals with that application.

Factual context and findings

The relationships

[2] The Applicant has spent the majority of his career in the printing industry 4. He commenced employment with the Respondent as its Managing Director in December 20015. The position of Managing Director was responsible for the day-to-day management and control of the Respondent’s business6 and the Applicant had autonomy in making management decisions7. Apart from his role as Managing Director he jointly established the business of the Respondent in 20018. The Applicant agreed that as the Respondent’s Managing Director, he was subject to various duties to be found in the Corporations Act2001, and in the shareholders agreement9, together with duties implied into a contract of employment10. The Applicant’s total remuneration package as the Respondent’s Managing Director at the time of his dismissal was $100,000 per annum11. The Applicant remains a shareholder of the Respondent, controlling 44% of the total shareholding12.

[3] Silvio Morelli is the Respondent’s majority shareholder (51%) 13 and works for the Respondent in a part-time capacity on a total remuneration package of $50,000 per annum. Mr Morelli signed the letter of termination14. The remaining 5% of the shareholding is controlled by Mr Castagnini15. Mr Morelli is also the owner of a publication business called Blitz Publications which is a client of the Respondent16.

[4] Genine Thornton is married to the Applicant. She operates a business trading as Genuine Print which provides various print related services including low volume printing and print brokering 17. Much of the allegations which formed the reasons for the Applicant’s dismissal centred on Genuine Print. The Applicant and the Respondent are also separately involved in a commercial dispute18.

The investigation

[5] On 22…

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: [2014] FWC 437
Decision Date: 24 JANUARY 2014

CaseChat Overview and Summary

In the matter of Mr Anthony Callahan versus Graphic Impressions, the Federal Court was presented with an application for relief from unfair dismissal. The applicant, Mr Callahan, sought to challenge the decision by his employer, Graphic Impressions, to terminate his employment. The nature of the dispute centred on whether the dismissal was justified, procedurally fair, and if it constituted an unfair dismissal under the Fair Work Act 2009.

The legal issues that the court had to resolve included whether Mr Callahan's dismissal was due to his involvement in protected industrial action, whether the employer had just cause to dismiss him, and if the procedural fairness was adhered to in the termination process. Additionally, the court examined whether the employer's actions were consistent with the principles of natural justice and fairness as required by the Act.

The court examined the evidence and submissions from both parties and found that the dismissal was not related to any protected industrial action. It was determined that Mr Callahan's termination was due to a serious breach of trust and a failure to follow company policies. The court held that the employer acted within its rights to dismiss Mr Callahan, and the procedures followed were fair. Consequently, the court dismissed the application for relief from unfair dismissal.

The final orders of the court were that the application by Mr Callahan was dismissed with no orders for costs.

Orders