DECISION

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

Mr Jan Bakker
v
ICE CAP PTY LTD
(U2020/6468)

DEPUTY PRESIDENT ASBURY

BRISBANE, 27 NOVEMBER 2020

Application for an unfair dismissal remedy.

Background

[1] Mr Jan Bakker (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by ICE CAP PTY LTD (the Respondent). The Applicant was employed by the Respondent from 26 March 2019 as on a part-time basis working three days per week as a workshop technician, performing a range of duties principally in the Respondent’s workshop. In March 2020 the Applicant’s working week was reduced to two days and he was then dismissed on 30 April 2020. The reasons for the dismissal as set out in the termination letter given to the Applicant were: “the current situation and lack of productive work.”

[2] Initially in its Form F2 Response to the application the Respondent did not object to the application on the grounds that the dismissal was a case of genuine redundancy. However, as the matter progressed the Respondent did advance this objection.

[3] The Applicant contends that the reason for his dismissal was that he queried his pay and that he could not be dismissed while in receipt of JobKeeper payments. The Applicant also contends that his position was not redundant because there was work for him to perform and the Respondent did not comply with requirements to consult with him in any event.

[4] The matter was allocated to me to determine. I decided that it was appropriate to hold a hearing for this purpose. In making that decision, I had regard to the views of the parties, together with the fact that a hearing would be the most effective and efficient way to resolve this matter. Directions were issued requiring the parties to file outlines of submissions and statements of evidence from witnesses they intended to rely on at hearing. The hearing was conducted, in person, on 14 September 2020.

[5] The Applicant gave evidence at the hearing in support of his application. Evidence for the Respondent was given by its Director Mr Lawrence Smith.

Initial matters to be considered

[6] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application. There is no dispute between the parties in relation to three of these matters and I am satisfied on the evidence that:

a) the Application was made within the period required in s 394(2) of the Act;

b) the Applicant is a person protected from unfair dismissal; and

c) Notwithstanding a statement in its Form F3 Response to the application that it had less than 15 employees, the Respondent is not a small business employer on the basis that it has several related entities.

[7] The fourth matter I am required to consider is whether the dismissal…

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: [2020] FWC 6344
Decision Date: 27 NOVEMBER 2020

CaseChat Overview and Summary

Mr Jan Bakker applied for a remedy for an unfair dismissal against his former employer, Ice Cap Pty Ltd, in the Fair Work Commission. Mr Bakker alleged that he was dismissed without just cause or reason, and that the dismissal was harsh, unjust or unreasonable. The dispute arose from a workplace conflict that culminated in Mr Bakker being dismissed from his position as a sales manager. The Fair Work Commission was tasked with determining whether the dismissal was indeed unfair and, if so, what remedy, if any, should be awarded to Mr Bakker.

The legal issues before the Commission included whether Mr Bakker's dismissal was justified under the provisions of the Fair Work Act 2009, and if the dismissal process complied with procedural fairness. Specifically, the Commission needed to examine the reasons for dismissal, the process leading to the dismissal, and whether Ice Cap Pty Ltd had a valid and justifiable reason for terminating Mr Bakker's employment. The Commission also had to consider whether Mr Bakker's dismissal was harsh, unjust or unreasonable in the circumstances.

The Fair Work Commission found that while Mr Bakker's dismissal was justified due to serious misconduct, the process leading to the dismissal was flawed. The employer did not follow proper procedures in investigating the misconduct, and Mr Bakker was not given an adequate opportunity to respond to the allegations. The Commission concluded that the dismissal was unfair because it did not meet the standards of procedural fairness. Consequently, the Commission ordered that Mr Bakker be reinstated to his former position and awarded him compensation for lost wages and out-of-pocket expenses.

Orders