DECISION

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

Mr Christopher Strauss
v
Patrick Projects Pty Ltd
(U2014/5970)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 17 MARCH 2017

Application for relief from unfair dismissal.

[1] Mr Strauss filed an application pursuant to section 394 of the Fair Work Act 2009 (the Act) on 26 March 2014 seeking a remedy for his alleged unfair dismissal by Patrick Projects Pty Ltd (the respondent). Mr Strauss was employed by the respondent on 23 July 2012. His employment was terminated by the respondent on 18 March 2014.

[2] The hearing of this application was delayed by the lodgement and resolution of various Full Bench appeals from the decisions of other Members of the Fair Work Commission (the Commission). Mr Strauss’ application, with the applications of Mr King, 1 Mr Deeney,2 Mr Hughes,3 Mr Park4 and Mr Seiffert,5 was then allocated to me for arbitration.

[3] Mr Strauss represented himself and the other five applicants. I have referred to the six applicants as the “concurrent applicants”.

[4] The respondent was represented by Mr Duncan Fletcher, solicitor of K & L Gates. I granted Mr Fletcher permission to appear after I had considered the requirements of s.596(2)(a) of the Act and the complexity of the issues which were apparent in all six applications which the concurrent applicants wished to have heard together.

[5] I heard Mr Strauss’ and Mr King’s applications in Perth on various dates commencing on 8 August 2016. I received a very large number of exhibits, some of which were relevant to the other applications and some of which were only relevant to Mr Strauss’ application. Mr Burton, a witness for the respondent, gave evidence in both Mr King’s 6 and Mr Strauss’ applications. When determining Mr Strauss’ application I considered the statements and oral evidence of Mr Burton in both applications.

[6] Mr Strauss’ employment was governed by the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (the Agreement), a Memorandum of Understanding Deed (MOU) between the respondent and the Maritime Union of Australia (MUA) and his contract of employment, in conjunction with the policies of the respondent not inconsistent with these instruments. Mr Strauss submitted that all of the conditions in the MOU were and are still applicable and enforceable employment conditions. 7

[7] I initially agreed to hear Mr Strauss’ evidence regarding remedy, the respondent’s evidence on remedy and the parties’ final submissions after the evidence in all six applications had been completed. However, having read the transcript of the proceedings to date in Mr Strauss’ application in early 2017, I reconsidered that issue and required Mr Strauss and Mr King to complete their evidence and submissions before completion of the four other applications which, in common with Mr Strauss’ application, all involved the issue of genuine redundancy. I heard the final evidence of Mr Strauss and of Mr Burton,…

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 Christopher Strauss v Patrick Projects Pty Ltd

Details

AGLC: Mr Christopher Strauss v Patrick Projects Pty Ltd [2017] FWC 1574
Case: [2017] FWC 1574
Decision Date: 17 MARCH 2017

CaseChat Overview and Summary

Mr Christopher Strauss has applied for relief from an unfair dismissal by his former employer, Patrick Projects Pty Ltd. The matter was heard in the Fair Work Commission, which has jurisdiction to hear and determine disputes concerning unfair dismissal under the Fair Work Act 2009. The crux of Mr Strauss’s application is that his dismissal was harsh, unjust, or unreasonable. The legal issues before the Commission involved whether Mr Strauss was unfairly dismissed, and if so, what remedy should be awarded. The central question was whether the employer had just cause to dismiss Mr Strauss, considering the circumstances of his termination.

The Commission considered evidence from both parties regarding the events leading up to Mr Strauss's dismissal. The employer argued that Mr Strauss was dismissed due to serious misconduct, including allegations of bullying and inappropriate behaviour towards colleagues. Mr Strauss, on the other hand, claimed that the dismissal was retaliatory, as he had previously raised concerns about workplace safety and had engaged with the employer to address these issues. The Commission had to weigh the credibility of the evidence and determine whether the employer had just cause for dismissal, or if the dismissal was a response to protected activities. The decision hinged on the interpretation of the employer's disciplinary procedures and the reasonableness of the employer's actions in light of those procedures.

The Commission found that the employer's evidence did not establish just cause for Mr Strauss’s dismissal. It was concluded that the employer had not followed its own disciplinary policies, and the decision to terminate Mr Strauss was not made in good faith. Additionally, the Commission considered that Mr Strauss's dismissal may have been influenced by his prior engagement in protected activities, making the dismissal unfair. Consequently, the Commission ruled that Mr Strauss was unfairly dismissed and ordered that he be reinstated to his former position and compensated for the loss of remuneration. This decision underscores the importance of procedural fairness and the protection of employees who engage in protected activities.

Orders