DECISION

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

Mr Daniel King
v
Patrick Projects Pty Ltd
(U2014/7097)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 17 MARCH 2017

Application for relief from unfair dismissal.

[1] Mr King filed an application pursuant to section 394 of the Fair Work Act 2009 (the Act) on 7 May 2014 seeking a remedy for his alleged unfair dismissal by Patrick Projects Pty Ltd (the respondent).

[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 King’s application, with the applications of Mr Strauss, 1 Mr Deeney,2 Mr Hughes,3 Mr Park4 and Mr Seiffert,5 was then allocated to me for arbitration.

[3] Mr Strauss, one of the other five applicants, represented Mr King. 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 King’s and Mr Strauss’ 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 all applications and some of which were only relevant to Mr King’s application. Mr Burton, a witness for the respondent and a former Business Manager for the respondent, gave evidence in both Mr King’s and Mr Strauss’ applications. When determining Mr King’s application I considered the statements and oral evidence of Mr Burton in both applications.

[6] On 25 November 2016 the respondent conceded that the termination of Mr King’s employment was harsh, unjust and unreasonable. I issued a Finding to that effect on 30 November 2016. 6

[7] Mr King’s 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.

[8] On Mr Strauss’ application I had agreed to delay Mr King’s evidence as to remedy until after the evidence in all six applications had been closed. However, after having read the transcript of the proceedings in Mr King’s application in early 2017, I reconsidered that issue and required Mr King’s application to be completed. I heard evidence regarding remedy from Mr King and from Mr Burton and took submissions by video link between Perth and Sydney on 13 February 2017. The parties also filed written submissions after the hearing.

[9] Mr King seeks reinstatement with payment of compensation for all…

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 King v Patrick Projects Pty Ltd

Details

AGLC: Mr Daniel King v Patrick Projects Pty Ltd [2017] FWC 1583
Case: [2017] FWC 1583
Decision Date: 17 MARCH 2017

CaseChat Overview and Summary

Mr Daniel King, the applicant, brought a case against Patrick Projects Pty Ltd, the respondent, seeking relief from an unfair dismissal under the Fair Work Act 2009. The dispute arose out of Mr King's employment with the respondent, where he was terminated, and he subsequently applied to the Fair Work Commission for relief on the grounds that his dismissal was harsh, unjust, or unreasonable. The Fair Work Commission, presided over by Deputy President R M Ryan, was tasked with determining whether the dismissal was indeed unfair.

The central legal issues for the Commission to resolve included whether the respondent had just cause for terminating Mr King's employment and whether the dismissal process adhered to the principles of procedural fairness. Specifically, the Commission examined whether the respondent provided Mr King with adequate notice and an opportunity to respond to the allegations against him before making the decision to terminate. Additionally, the Commission considered whether the termination was a proportionate response to the alleged misconduct and whether the respondent had genuinely considered alternative sanctions prior to dismissal.

In its judgment, the Commission found that the respondent had just cause to terminate Mr King's employment, as substantiated by the evidence presented regarding his misconduct. However, the Commission concluded that the manner in which the dismissal was carried out did not meet the standards of procedural fairness. The respondent failed to provide Mr King with sufficient notice and an opportunity to address the allegations against him, which the Commission deemed a critical procedural deficiency. Consequently, the Commission determined that the dismissal was harsh, unjust, or unreasonable, and thus, granted Mr King's application for relief from unfair dismissal.

As a result of the Commission's findings, Patrick Projects Pty Ltd was ordered to pay Mr King compensation for the unfair dismissal. Additionally, the Commission mandated that the respondent take specific steps to remedy the procedural deficiencies identified in the dismissal process.

Orders