DECISION

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

Mr Jordan Lamacq
v
Smerff Electrical
(U2018/5137)

DEPUTY PRESIDENT ASBURY

BRISBANE, 14 JANUARY 2019

Application for an unfair dismissal remedy – Jurisdictional objections – Small Business Employer – Minimum employment period met – dismissal not consistent with Small Business Fair Dismissal Code – Dismissal harsh unjust or unreasonable – compensation awarded.

BACKGROUND

[1] Mr Jordan Lamacq applies to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In his Form F2 Unfair dismissal application, Mr Lamacq states he commenced employment with Smerff Electrical (Smerff) as a casual trade assistant on 23 January 2017. Mr Lamacq states that he remained employed by Smerff on a casual basis up until he commenced a full time apprenticeship with Smerff on 6 September 2017. Mr Lamacq claims he was then employed as a full time apprentice with Smerff from 6 September 2017 up until he was summarily dismissed by Mr Simon Hickey, owner and managing director of Smerff, on 16 May 2018.

[2] The hearing and determination of the issues in dispute was complicated by the conduct of Mr Hickey. On 21 May 2018 staff of the Commission corresponded with Mr Hickey by informing him that the application had been made and listed for a conciliation conference on 15 June 2018 and providing Mr Hickey with a copy of the application. Mr Hickey was also requested to complete a Form F3 Employer response which was sent to him. Mr Hickey responded on 25 May 2018 indicating that he was not available on 15 June 2018 due to an overseas holiday and making various allegations against Mr Lamacq and another employee in relation to theft.

[3] Material on the file indicates that various attempts were made to contact Mr Hickey to arrange an alternative date for a conciliation conference and that he was provided with links to resources on the Commission’s website to assist him to prepare for a conciliation conference. Regrettably Mr Hickey did not utilise these resources. Mr Hickey’s response to an email from the Commission regarding an adjournment of the conciliation conference was sent by email on 28 May 2018 and is in the following terms:

“Oi I am not seeking an adjournment this is not a court.

I will not be there.

The thief can have his day I don’t care but it won’t be the 15^th.

Pick another day after the 18^th and I may or may not show then depending on whether someone has investigated his theft or not.”

[4] Further correspondence was sent to Mr Hickey on 13 June 2018 informing him that a conciliation conference would be held on 18 June 2018 and again requesting that Smerff file a Form F3 Employer response to the application. The Commission’s file also indicates that an attempt was made to contact Mr Hickey by telephone also…

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 181
Decision Date: 14 JANUARY 2019

CaseChat Overview and Summary

Mr Jordan Lamacq filed an application against Smerff Electrical in the Fair Work Commission, seeking a remedy for his unfair dismissal. The dispute centres on whether the dismissal complied with the provisions of the Fair Work Act 2009 and the specific requirements of the Small Business Fair Dismissal Code. Lamacq contends that his dismissal was unjust, unreasonable, and harsh, warranting compensation. Smerff Electrical argues that the dismissal was fair and justified under the circumstances.

The central legal issues before the Commission were whether the employer had correctly followed the dismissal procedures outlined in the Small Business Fair Dismissal Code and whether the dismissal was harsh, unjust, or unreasonable under the general protections provisions of the Fair Work Act. The Commission needed to determine if the dismissal complied with the minimum employment period requirement and if the employer had a valid reason for the termination. Additionally, it was necessary to assess whether the dismissal process and reasons provided were consistent with the standards of procedural fairness and substantive justice.

The Commission found that Mr Lamacq's minimum employment period had been met, and the dismissal did not align with the requirements of the Small Business Fair Dismissal Code. It was determined that the dismissal was harsh, unjust, or unreasonable, as the employer failed to adequately explain the reasons for the dismissal and did not follow the appropriate procedures. Consequently, the Commission ordered compensation to Mr Lamacq for the unfair dismissal. The employer's failure to justify the dismissal within the framework of the Code and the principles of fairness led to this outcome.

Orders