Mr Martin Gunn v Polymaster Pty Ltd - [2024] FWC 1978

[2024] FWC 1978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Martin Gunn
v

Polymaster Pty Ltd

(U2024/5274)

DEPUTY PRESIDENT SLEVIN

SYDNEY, 26 JULY 2024

Application for an unfair dismissal remedy – Compensation awarded.

Mr Martin Gunn has applied under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. He was dismissed by Polymaster Pty Ltd (Polymaster) on 7 May 2024. Polymaster opposes the application contending that Mr Gunn was not unfairly dismissed.

The application was heard by way of conference.

I find that Mr Gunn was unfairly dismissed. I have decided to award Mr Gunn compensation in lieu of reinstatement of $27,600.00, less applicable taxation.

When can the Commission order a remedy for unfair dismissal?

Section 390 of the Act provides that the Commission may order a person’s reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal and was unfairly dismissed. There was no dispute that Mr Gunn was protected from unfair dismissal and I find that he was. The question is whether he was unfairly dismissed.

Section 385 relevantly provides that a person has been unfairly dismissed if the Commission is satisfied of four things: the person has been dismissed; the dismissal was harsh, unjust or unreasonable; the dismissal was not consistent with the Small Business Fair Dismissal Code, and the dismissal was not a case of genuine redundancy.

There was no issue that Mr Gunn was dismissed, that the Small Business Fair Dismissal code did not apply and the reason for dismissal was not redundancy. Consequently, the first question for determination in this case is whether the dismissal was harsh, unjust or unreasonable.

Background

The facts are largely uncontested. Mr Gunn commenced working for Polymaster on 8 May 2023 as its Account Manager Southern NSW. He was employed under a contract of employment and the Commercial Sales Award 2020. His rate of pay at the time of dismissal was $119,600 per year. His was provided with a vehicle for business use. He was also provided with a laptop computer and a mobile phone. As an account manager Mr Gunn was expected to manage the distribution and sales of Polymaster’s products in Southern NSW. Polymaster allocated a number of clients in that area and Mr Gunn and he was responsible for those accounts.

In November 2023 Mr Gunn notified his manager, Ben Steele, and Polymaster’s National Sales Manager, Phil Collins, that he may lose his drivers’ licence. He said that he was challenging the loss of licence. Mr Collins responded that appropriate arrangements would be made and a discussion was had with Mr Steele about what could be done in the event Mr Gunn lost his licence. Mr Gunn was told not to worry.

On 9 January 2024 Mr Gunn informed Mr Collins and Mr Steele that he would be losing his licence for a period of 6 months…

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: [2024] FWC 1978
Decision Date: 26 JULY 2024

CaseChat Overview and Summary

Mr Martin Gunn applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009, contending that his dismissal by Polymaster Pty Ltd was unfair. Polymaster opposed the application, arguing that Mr Gunn was fairly dismissed. The dispute was heard by Deputy President Slevin of the Fair Work Commission.

The central legal issue was whether Mr Gunn was unfairly dismissed. The Commission had to determine if the dismissal was harsh, unjust or unreasonable. Under section 385 of the Act, a person is unfairly dismissed if certain conditions are met, including that the dismissal was harsh, unjust or unreasonable. The other conditions, such as the applicability of the Small Business Fair Dismissal Code and the issue of redundancy, were not contested.

The background to the case revealed that Mr Gunn was employed by Polymaster as an Account Manager. He informed the company that he might lose his driver’s licence, which subsequently occurred for six months from February 2024. Polymaster had agreed to support Mr Gunn by arranging for him to be driven to client meetings, but this arrangement was not honoured. Mr Gunn’s sales figures dropped in March and April, and he was dismissed on 7 May 2024 for poor performance and inability to fulfil the inherent requirements of his role.

In determining whether the dismissal was harsh, unjust or unreasonable, the Commission considered several factors. These included the lack of warning about poor performance, the failure to provide Mr Gunn with an opportunity to have a support person present during the dismissal meeting, and the overall circumstances surrounding the dismissal. The Commission found that Mr Gunn’s performance was not markedly worse than that of his peers, and that it was unreasonable to dismiss him without exploring further support options. Consequently, the dismissal was deemed unfair.

In deciding the appropriate remedy, the Commission rejected reinstatement as the relationship had broken down and opted for compensation instead. Considering Mr Gunn's age, difficulty in finding new employment, and the short duration of employment, the Commission awarded him 12 weeks' pay, amounting to $27,600 before tax, in lieu of reinstatement.

The Fair Work Commission ordered that Polymaster pay Mr Gunn compensation of $27,600 less applicable taxation in lieu of reinstatement.

Orders