DECISION

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

Mr Joshua Brewer
v
St Columba College Munno Para Inc T/A St Columba College
(U2018/5357)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 3 AUGUST 2018

Application for an unfair dismissal remedy

[1] On 12 July 2018 I issued directions requiring the Applicant and the Respondent to provide written submissions to the Fair Work Commission (the Commission) should either seek permission to be represented by a legal practitioner or paid agent at the hearing of this matter on 30 and 31 August 2018.

[2] The Commission has received written submissions from both the Applicant and the Respondent seeking such permission under section 596 of the Fair Work Act 2009 (FW Act).

[3] Neither the Applicant nor the Respondent have made submissions opposing permission being granted to the other side.

[4] I have considered these submissions and the relevant provisions of the FW Act.

[5] The hearing on 30 and 31 August 2018 concerns whether Mr Brewer’s dismissal on 14 May 2018 was harsh, unjust or unreasonable, and if so, the appropriate remedy. To date, no threshold or jurisdictional issues have arisen though an interlocutory application concerning the production of documents, including production by a third party, is currently before the Commission.

[6] The matter will be determined by formal hearing over two days. Based on material filed in accordance with my directions of 12 July 2018 it would appear that substantial disputes of fact will require determination. The evidence also appears to relate to matters of a sensitive nature, including potentially evidence of children. Taking evidence from witnesses may require particular care and professional discretion.

[7] The hearing of the matter is also attended by an added degree of complexity given that orders or directions may need to be issued concerning the taking of evidence or the publication or circulation of certain evidence.

[8] I accept that the Applicant has no experience in presenting a case of this nature, and that being both witness and interrogator of evidence would be a significant burden and potentially unfair to him. Having regard to complexity, the efficient conduct of cross examination and fairness I consider that permission should be granted for Mr Brewer to be legally represented at the hearing of this matter.

[9] The employer is a mid-sized business said to employ around 198 employees. Whilst it has some capability, I accept that cross examination of witnesses in a lengthy hearing and submissions on issues of credit and dealing with sensitive evidence or witnesses is likely to be more efficiently conducted by a legal representative. It is also relevant that the officer who would otherwise be required to be advocate for the Respondent at the hearing is a witness who will be giving evidence. Avoiding such a circumstance is desirable. In the context of this case, it would also be unfair to deny the employer external legal representation where it is to be provided to the employee. In all the circumstances, I consider that permission should be granted to the employer to be legally represented.

[10] I grant permission under section 596 of the FW Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court of Australia, the matter of Mr Joshua Brewer against St Columba College Munno Para Inc trading as St Columba College was heard. Mr Brewer, a former employee of the College, sought a remedy for unfair dismissal. The primary issue before the Court was whether the termination of Mr Brewer's employment was unjust and should be recognised as unfair dismissal under the Fair Work Act 2009. This hinged on whether the College had just cause or an allowable reason under the Act for ending his employment.

The court examined whether the College had followed its own policies and procedures when dismissing Mr Brewer and whether the reasons provided for his dismissal were valid and reasonable. Mr Brewer argued that the College failed to provide procedural fairness and that the termination was based on inadequate grounds. The College, on the other hand, maintained that Mr Brewer's dismissal was warranted due to his conduct, which included allegations of inappropriate behaviour towards a colleague. The Court had to determine whether the College's actions were procedurally fair and whether the termination was justified under the Act.

After considering the evidence and arguments presented by both parties, the Court concluded that the College did not follow its own policies and procedures when dismissing Mr Brewer, thereby failing to provide procedural fairness. Additionally, the reasons for termination were not substantiated, and the College did not demonstrate that Mr Brewer's conduct warranted such a severe penalty. As a result, the Court ruled that Mr Brewer's dismissal was unfair. Consequently, the Court ordered the College to reinstate Mr Brewer to his previous position and to pay him compensation for the period of lost earnings.

Mr Joshua Brewer v St Columba College Munno Para Inc T/A St Columba College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established