DECISION

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

Mr David Vieritz
v
YEO & CO. PTY LTD
(U2016/504)

COMMISSIONER HUNT

BRISBANE, 25 JULY 2016

Application for relief from unfair dismissal.

Introduction

[1] Mr Vieritz applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by YEO & CO. Pty Ltd (Yeo & Co). Yeo & Co is a business located in Goondiwindi and is engaged in earthmoving and truck hire.

[2] Mr Vieritz commenced employment with Yeo & Co as a casual employee on 1 October 2013. His employment was made permanent on 30 December 2013. He was summarily dismissed from his employment on 26 January 2016.

Small Business Employer

[3] Section 23 of the Act describes a small business employer as one who, at a particular time employs fewer than 15 employees.

[4] In the material before the Fair Work Commission (the Commission), it is asserted by Yeo & Co that at the time of Mr Vieritz’s dismissal, it employed 14 employees. This is not disputed by Mr Vieritz.

[5] I find that Yeo & Co is a small business employer pursuant to s.23 of the Act. Accordingly, it is necessary to determine if Mr Vieritz’s dismissal was consistent with the Small Business Fair Dismissal Code. A consideration will be made below.

Yeo & Co under administration

[6] After a number of hearing dates were set and unable to be met for various reasons, the matter was ultimately listed for hearing by telephone on 1 July 2016.

[7] On 16 June 2016, my chambers received the following correspondence:

“Dear Sirs,
RE: YEO & CO. PTY LTD

(ADMINISTRATORS APPOINTED)

A.B.N.: 72 071 325 427

(“THE COMPANY”)

YOUR REFERENCE: MATTER NUMBER – U2016/504

We refer to your Notice of Listing for matter U2016/504 in respect of the Company and advise that we, Andrew John Spring and Amanda Young of Jirsch Sutherland, were appointed as Joint & Several Administrators of the Company on 30 May 2016.

Please be advised that during the administration of the company, pursuant to Section 440D of the Corporation Act 2001, any proceedings against the company or in relation to any of its property cannot be begun or proceeded with, expect with the administrator’s written consent or leave of the court. Accordingly, these proceedings will be stayed until the administration has concluded.

Should you require any further information, please contact [name] of this office on [number].

Yours faithfully,
YEO & CO. PTY LTD

AMANDA YOUNG
Joint and Several Administrator”

[8] On 21 June 2016, my Associate sent the following email to Ms Young:

“Commissioner Hunt advises that the Fair Work Commission has previously considered circumstances where respondents have moved into voluntary administration and specifically whether as a consequence s.440D of the Corporations Act represents a bar to unfair dismissal remedy applications. Those decisions have concluded that the Corporations Act does not prevent the Commission from proceeding to…

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: [2016] FWC 4907
Decision Date: 25 JULY 2016

CaseChat Overview and Summary

In the Fair Work Commission, Mr David Vieritz brought an application against Yeo & Co. Pty Ltd for relief from unfair dismissal. Mr Vieritz claimed that his dismissal was unjust and contrary to the principles of fairness set out in the Fair Work Act 2009. The company, on the other hand, argued that the dismissal was justified under the provisions of the Act and was based on legitimate reasons. The Commission was required to determine whether the dismissal was indeed unfair, taking into account all relevant circumstances and applicable legal standards.

The central legal issues revolved around whether Mr Vieritz's dismissal was procedurally fair, substantively fair, and whether the company had just cause for termination. Specifically, the Commission examined whether the company provided adequate notice and an opportunity for Mr Vieritz to respond to the allegations against him, whether the reasons for dismissal were valid, and if the penalty of dismissal was proportionate to the offence. The company's argument centred on Mr Vieritz's alleged misconduct and the company's right to maintain workplace discipline and integrity. Mr Vieritz, however, contended that the process was flawed and that his dismissal was disproportionate to the nature of his alleged misconduct.

The Commission carefully considered the evidence presented by both parties and the applicable provisions of the Fair Work Act. It found that while the company had grounds for dismissal due to Mr Vieritz's conduct, the process leading to the dismissal was not procedurally fair. The company failed to provide Mr Vieritz with sufficient notice and an adequate opportunity to respond to the allegations. The Commission held that the dismissal was therefore unfair, as it contravened the principles of procedural fairness. Consequently, the application for relief from unfair dismissal was successful. The Commission ordered that Mr Vieritz be reinstated to his former position or, in the alternative, be compensated for the loss of his employment.

Orders