Mr Antony Robert Course v Wavin Technologies Pty Ltd - [2022] FWC 3100

[2022] FWC 3100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Antony Robert Course
v

Wavin Technologies Pty Ltd

(U2022/3632)

DEPUTY PRESIDENT O'NEILL

MELBOURNE, 24 NOVEMBER 2022

Application for an unfair dismissal remedy

This decision concerns an application for an unfair dismissal remedy made by Mr Antony Course against Wavin Technologies Pty Ltd (Wavin). Mr Course’s employment was terminated effective 22 March 2022. The Applicant contends, and Wavin denies, that the dismissal was harsh, unjust, and unreasonable.

After hearing from the parties, I determined that conducting a hearing was the most effective and efficient way to deal with the matter and I granted permission for both parties to be legally represented. The Applicant mostly represented himself but was also represented for part of the hearing by Mr Rohan Millar of counsel.

At the hearing on 28 September 2022, the Applicant gave evidence in support of his case, and he also relied upon a witness statement of Mr Robert Dell who was not required for cross examination. Mr Friedman (Chairman), Mr Rosenberg (Chief Operating Officer), and Ms Richardson (an employee of an associated entity) gave evidence for the Respondent. The former CEO, Ms Voss, and Ms Casey (adviser) also provided witness statements but were not required for cross-examination. The witness statement of Mr To was not relied upon by the Respondent.

Background and factual findings

In an earlier decision,[1] I dismissed the Respondent’s jurisdictional objection that the Applicant was not dismissed within the meaning of s.386 of the Fair Work Act 2009 (Cth) (Act) as he was an independent contractor and was not an employee.

I do not repeat all the findings in that decision but have taken them into consideration. In that decision I determined that the parties entered into a contract of employment on 1 December 2020, the key terms of which were proposed by the Applicant. Under the contract Mr Course would be remunerated by way of a base salary and share options. However, this remuneration was only “payable at 50% of cash received from revenue bought in or capital raised by [the applicant].”[2]

Wavin was initially set up as a business to sell Covid tracking services to businesses, but when the Victorian Government mandated the use of QR codes, Wavin had to ‘pivot’ and build a new business from scratch.[3]

The Applicant’s role was initially to focus on sales using his networks and experience to generate clients and investors to the start-up business. Over the course of the relationship, when the original business plan was largely derailed, the Applicant undertook other duties including identifying other products to sell, support in capital raising, developing new contracts, project managing clients and tasks such as printing signs and gluing sensors to signs.[4] Mr Course’s evidence during the hearing was that his later role also typically involved relationship management with external clients.

Neither Mr Course nor anyone else was successful in generating revenue for most of 2021.[5] Over the approximately 15 months Mr…

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.

Continue reading Mr Antony Robert Course v Wavin Technologies Pty Ltd

Details

AGLC: Mr Antony Robert Course v Wavin Technologies Pty Ltd [2022] FWC 3100
Case: [2022] FWC 3100
Decision Date: 24 NOVEMBER 2022

CaseChat Overview and Summary

Mr Antony Course brought a claim for unfair dismissal against Wavin Technologies Pty Ltd. The central issue was whether the dismissal of Mr Course was harsh, unjust, and unreasonable. The Fair Work Commission found that Mr Course's dismissal was consistent with the Small Business Fair Dismissal Code. The Commission determined that there was a valid reason for the dismissal based on Mr Course's conduct, including his inappropriate, rude, and offensive communication with Mr Friedman. Mr Course had been warned multiple times that his behaviour was unacceptable and needed to change, but he failed to do so. Consequently, the dismissal was not unfair, and Mr Course's application for an unfair dismissal remedy was dismissed. The Commission found that the relationship between Mr Course and Wavin had broken down significantly, and there was no prospect of restoring trust and confidence between the parties.

Orders