DECISION

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

Mr Jason Thomas
v
MWS Pty Ltd
(U2018/2306)

DEPUTY PRESIDENT SAMS

SYDNEY, 9 JANUARY 2019

Application for an unfair dismissal remedy – allegation of serious misconduct – alleged theft of Company property; namely, three unopened bottles of discarded liquor – Small Business Fair Dismissal Code – Code not complied with – no valid reason for dismissal – no theft involved – no proper investigation – failure to observe procedural fairness – dismissal harsh, unjust and unreasonable – reinstatement sought and ordered – lost remuneration ordered – final orders to be made.

BACKGROUND

[1] This decision will determine an application filed on 6 March 2018 by Mr Jason Thomas (‘the applicant’), pursuant to s 394 of the Fair Work Act 2009 (‘the Act’). Mr Thomas seeks an unfair dismissal remedy (reinstatement and lost remuneration) following his dismissal by MWS Pty Ltd (‘the respondent’) on 23 February 2018.

[2] The applicant commenced employment with the respondent on 1 February 2013. He was advised he had been dismissed in a letter from the respondent’s solicitors, EK Lawyers on 23 February 2018, on the basis of an allegation of serious misconduct; namely, the theft of company property. This allegation had also been conveyed to the applicant in a letter from EK Lawyers of 14 February 2018 suspending him and inviting his response to the allegation; essentially a ‘show cause’ letter. It was alleged that the stolen property was three bottles of liquor which the applicant had retrieved from a large esky on the respondent’s premises after having been discarded, three months earlier following a Melbourne Cup function in 2017.

[3] In its F3 Response to the application, Mr Dale Edwards, General Manager, raised two objections to the matter being determined by the Fair Work Commission (‘the Commission’); firstly, that the applicant was a Manager and not an employee; and secondly, that the applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (‘the Code’) as the respondent was a small business, as defined under the Act. The first objection was ultimately not pressed by the respondent.

[4] Nevertheless, the application was listed before a Commission Conciliator on 3 April 2018 and it was anticipated that the matter had been settled. However, on 25 May 2018, EK Lawyers advised the Commission that the matter had not settled. The matter was then remitted to me for hearing and determination. In accordance with my usual practice, I listed the matter for a further ‘face to face’ conciliation conference on 2 August 2018. The application was not resolved and proceeded to hearing on 10 October 2018. At the hearing Mr E Young of Counsel appeared for the applicant and Mr N Kirby, Solicitor, Edward Kirby Lawyers appeared for the respondent, with both parties granted permission to be represented by lawyers, in accordance with s 596 of the Act.

Identity of the employer

[5] At the commencement of…

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: [2019] FWC 62
Decision Date: 9 JANUARY 2019

CaseChat Overview and Summary

In the matter of Mr Jason Thomas v MWS Pty Ltd, the Fair Work Commission was tasked with determining whether the dismissal of Mr Thomas was fair and in accordance with the Small Business Fair Dismissal Code. Mr Thomas was employed by MWS Pty Ltd and was dismissed following an allegation of serious misconduct, specifically the theft of company property, namely three unopened bottles of discarded liquor. He sought relief under the Fair Work Act 2009, claiming his dismissal was unfair, and consequently, he applied for reinstatement and compensation for lost remuneration.

The central legal issues before the Commission were whether the company had complied with the Small Business Fair Dismissal Code, whether there was a valid reason for the dismissal, and if procedural fairness was observed during the dismissal process. The Commission needed to determine whether the alleged misconduct justified the dismissal and if the company had conducted a proper investigation into the matter.

The Commission found that the company had not complied with the Small Business Fair Dismissal Code, as it failed to follow the requisite procedures for dismissing an employee. The Commission held that there was no valid reason for the dismissal since there was no evidence of theft by Mr Thomas. Furthermore, the company did not conduct a proper investigation into the matter, and as such, failed to observe procedural fairness. Consequently, the dismissal was deemed harsh, unjust and unreasonable. The Commission ordered Mr Thomas's reinstatement and the payment of lost remuneration.

The Commission's final orders included the reinstatement of Mr Jason Thomas to his previous position with MWS Pty Ltd and the payment of lost remuneration. The company was also ordered to provide a written apology to Mr Thomas for the unfair dismissal. Additionally, the company was required to comply with the Small Business Fair Dismissal Code in the future when dismissing employees.

Orders