Mr Craig Murimwa v David Jones Pty Ltd - [2023] FWC 815

[2023] FWC 815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Craig Murimwa
v

David Jones Pty Ltd

(U2022/11248)

DEPUTY PRESIDENT CROSS

SYDNEY, 5 MAY 2023

Application for an unfair dismissal remedy

This decision arises from an application made by Mr Craig Murimwa (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for relief in respect of the termination of his employment by David Jones Pty Ltd (the Respondent). The Applicant stated that he was advised of his dismissal, and the dismissal occurred, on 3 November 2022.

The Applicant asserted that his dismissal was unfair and that the Respondent had no valid reason to terminate his employment. The Respondent, in their Form F3 Response, identified the following ground of jurisdictional objection to the Applicant’s claim:

The Applicant would not be eligible for unfair dismissal remedies due to the irregular and sporadic nature of the casual employment over, but not limited to the past two years of employment, as shown in Annexure 1.

In the hearing of the matter the Applicant represented himself. The Respondent was represented by Mr A Thomas of Seyfarth Shaw, who appeared with permission, and without objection by the Applicant. In the Hearing the Applicant provided no witness statements and was cross-examined. The Respondent relied upon a statement from Ms Amanda Emsies, the Customer Orders Manager of the Respondent, now in the role of Online Manager at the Silverwater Distribution Centre for the Respondent. Ms Amanda Emsies was cross-examined.

Background Facts

The Applicant commenced employment with the Respondent as a casual employee in November 2013. The Applicant’s position was performing the role of warehouse work at the David Jones Fulfilment Centre in Silverwater (the Distribution Centre). He reported to Ms Emsies. The work involved the Applicant picking and packing for delivery of online orders made on the Respondent’s website.

Ms Emsies was in charge of overseeing and managing all day-to-day processes for the Respondents Online team at the Distribution Centre. Her position oversaw operational and staffing matters. In Ms Emsies’ statement, she noted that there are approximately 160 employees at the Distribution Centre, with close to 50% responsible for picking and packing. The Respondent estimates that the Distribution Centre executes 3,000-5,000 customer orders daily, with October, November, and December being the busiest months.

All employees are given access to an app called ‘Reflexis’. This app is used for the employees to enter their availability for upcoming shifts. In Ms Emsies’ witness statement, she noted that at the commencement of employment for casuals, they are directed to update their Reflexis availabilities two-weeks in advance. Within the app, the option to select ‘unavailable’ requires casual employees to communicate the reason for their unavailability. The Respondent noted that the minimum requirement is for casual employees to be available for two days per week, though earlier in the relevant period that minimum requirement was three days per week.

Whilst the Respondent holds the minimum requirement as a standard,…

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: [2023] FWC 815
Decision Date: 5 MAY 2023

CaseChat Overview and Summary

The case of Mr Craig Murimwa versus David Jones Pty Ltd is an unfair dismissal claim brought under s.394 of the Fair Work Act 2009. Mr Murimwa claimed that his dismissal was unfair and that David Jones had no valid reason to terminate his employment. David Jones argued that the dismissal was fair as Mr Murimwa had not been a regular casual employee, and therefore was not protected from unfair dismissal under the Act. The central legal issue in this case was whether Mr Murimwa was protected from unfair dismissal. The court found that Mr Murimwa had been employed regularly and systematically for approximately seven years and therefore met the minimum employment period required to be protected from unfair dismissal. The court also found that David Jones had a valid reason for dismissal, as Mr Murimwa had a significant record of absenteeism and failed to update his availability for shifts. While the court noted some procedural fairness issues, it found that in the unique circumstances of this case, these issues did not weigh against the validity of the dismissal. The court concluded that the dismissal was not harsh, unjust, or unreasonable and dismissed the application.

Orders