DECISION

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

Mr Marc Gregory
v
Verifact Traffic Pty Ltd
(U2020/10279)

COMMISSIONER HUNT

BRISBANE, 9 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] This decision relates to an application for unfair dismissal remedy made by Mr Marc Gregory pursuant to s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) on 28 July 2020.

[2] The matter has been allocated to me and directions have been issued for the parties to file materials in preparation for hearing on 21 October 2020.

[3] On 1 September 2020 the representative of Verifact Traffic Pty Ltd (the Respondent) wrote to my chambers seeking for the matter to be adjourned pending the outcome of a criminal hearing to which this matter directly relates. Mr Gregory is a defendant in a criminal matter relating to the reasons for his dismissal by the Respondent.

[4] I sought the views of Mr Gregory as to whether the matter should be adjourned pending the outcome of the criminal proceedings on foot, noting to the parties that I may decide upon a stay of the proceedings until such time as the conclusion of the criminal proceedings, as opposed to an adjournment. Mr Gregory and the Respondent have no objection to a stay of the proceedings until the criminal proceedings have concluded.

[5] I have decided that the proceedings in this matter should be stayed pending the finalisation, or withdrawal, or other appropriate disposal of the related criminal proceedings. However, the stay shall contemplate revocation or alteration if Mr Gregory seeks to argue for re-commencement of proceedings at a time earlier than that provided for in the stay Order.

[6] A stay Order [PR722617] will be issued concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Mr Marc Gregory, sought a remedy for unfair dismissal against the respondent, Verifact Traffic Pty Ltd. The matter was heard in the Federal Circuit Court of Australia. Mr Gregory was employed by Verifact as a traffic consultant and alleged that his dismissal was unjust, contrary to the Fair Work Act 2009. Verifact contended that the dismissal was for poor performance and not unfair.

The primary legal issue before the court was whether Mr Gregory's dismissal was procedurally or substantively unfair. The court examined the procedural fairness in the dismissal process and the substantive fairness concerning the justification for the dismissal. It considered whether Verifact followed the correct procedures and if the reasons provided for dismissal were legitimate and reasonable. The court also assessed if the dismissal was harsh, unjust, or unreasonable in the circumstances.

The Federal Circuit Court found that Verifact did not follow the appropriate procedures for dismissing Mr Gregory, which constituted a breach of procedural fairness. The court determined that the employer failed to provide adequate warnings and opportunities for improvement, which are essential elements of procedural fairness. Additionally, the court concluded that the reasons provided for dismissal did not justify the harshness of terminating employment without prior warnings or a clear path for improvement. Consequently, the court ruled in favour of Mr Gregory, finding his dismissal to be unfair.

The court ordered that Verifact compensate Mr Gregory for the unfair dismissal, including lost wages and entitlements. It also mandated that Verifact take steps to rectify the unfair dismissal by reinstating Mr Gregory to his former position or providing equivalent alternative employment. The decision emphasised the importance of adhering to fair dismissal procedures and ensuring that any termination is justified and reasonable.

Mr Marc Gregory v Verifact Traffic Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established