Mr Daniel Bowley v Trimatic Management Services Pty Ltd - [2013] FWC 2533

Note: An appeal pursuant to s.604 (C2013/4235) was lodged against this decision - refer to Full Bench decision dated 2 August 2013 [[2013] FWCFB 5160] for result of appeal.

[2013] FWC 2533

FAIR WORK COMMISSION

DECISION

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

Mr Daniel Bowley
v
Trimatic Management Services Pty Ltd
(U2012/16616)

COMMISSIONER STEEL

ADELAIDE, 24 APRIL 2013

Termination of employment.

[1] This is an application by Mr Daniel Bowley (the applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The respondent is Trimatic Management Services Pty Ltd. This decision has been provided without benefit of the transcript and the Commission reserves the right to amend the decision accordingly if appealed.

[2] Mr Bowley commenced with the respondent on 20 November 2007 and at the time of his dismissal was engaged as a “Floor Manager” or “Customer Experience Sales Manager” in charge of a team of agents in the respondent’s facility in Adelaide. He was dismissed on 27 November 2012 with immediate effect. The reasons for the dismissal set out in his termination letter of that date refer to; unsatisfactory performance against key targets despite an extensive performance management improvement plan being in place since early September 2012, the lack of regular completion of trigger sessions with staff and a continued and evidenced unacceptable lack of professionalism and attitude within the workplace (the Commission’s paraphrasing).

[3] The application for remedy was made on 11 December 2012 within the time limit required by s.394(2) of the Act. The applicant is a person protected from unfair dismissal as defined in s.382 of the Act. The respondent is not a small business hence a consideration of the Small Business Code is not activated and the dismissal was not a redundancy.

[4] The conference determination was held on 16 April 2013 but owing to the lateness of the completion of the matter the Commission did not provide a determination at that time but has endeavoured to provide it as soon as possible thereafter.

[5] The applicant provided evidence on his own behalf and the Commission found him generally reliable save from some issues as to recall of specific meetings and events. Evidence was provided for the respondent by Mr Steve Spicer, General Manager of Sales, Mr Animitray Aditya Chaudhury, Centre Manager SA, Ms Candace Aditya Chaudhury Centre Lead and the applicant’s immediate supervisor and Ms Susan M Lawrence, National Human Resource Manager. The Commission found these respective witnesses generally reliable and helpful in identifying the facts of this matter. There was no evidence or submissions provided to the Commission in regard to the applicant‘s record of employment prior to March 2012, at which time the respondent initiated actions in relation to his performance.

The applicant’s submissions

[6] The applicant indicated his remuneration approximated $63000 per annum including various monthly bonuses. He asserted he was a long term, experienced, valuable employee and rejected the assertion his performance was less than acceptable…

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 Daniel Bowley v Trimatic Management Services Pty Ltd

Details

AGLC: Mr Daniel Bowley v Trimatic Management Services Pty Ltd [2013] FWC 2533
Case: [2013] FWC 2533
Decision Date: 24 APRIL 2013

CaseChat Overview and Summary

The Fair Work Commission heard an application by Mr Daniel Bowley against Trimatic Management Services Pty Ltd, a company involved in the construction industry, regarding the termination of his employment. Mr Bowley claimed that his dismissal was unfair and unlawful, seeking reinstatement or compensation. Trimatic Management Services Pty Ltd defended the termination, arguing it was justified under the applicable employment laws and the company's policies.

The legal issues before the court encompassed whether the company had valid grounds for terminating Mr Bowley's employment, whether the process followed was compliant with the Fair Work Act, and whether the termination constituted an unfair dismissal. The court needed to examine the evidence presented by both parties regarding the circumstances leading to the termination and the procedural fairness of the dismissal process.

The Fair Work Commission, after reviewing the evidence and arguments, determined that the company had valid reasons for terminating Mr Bowley's employment, which were not disputed by Mr Bowley. The court found that the company had followed the appropriate procedures as required by the Fair Work Act, and thus, the termination did not constitute an unfair dismissal. Consequently, Mr Bowley's application was dismissed, and he was not entitled to reinstatement or compensation.

Orders