DECISION

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

Mr Michael Sutherland
v
WCH Services Pty Ltd T/A WCH Services
(U2016/163)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 29 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] On 11 January 2016, Mr Michael Sutherland made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by WCH Services Pty Ltd T/A WCH Services (WCH Services).

[2] Mr Sutherland was dismissed from his employment at the initiative of the employer on 21 December 2015. Mr Sutherland submits the dismissal took effect immediately and he was not paid any of his entitlements. Mr Sutherland submits his dismissal was unfair.

Background and case outline

[3] Mr Sutherland commenced employment with WCH services, a trolley services contractor, in October 2014 as a part time L1 Driver and trolley collector at the Coles and Kmart sites in Traralgon.

[4] During his employment and prior to his dismissal, Mr Sutherland submits he had not received any warnings for either his conduct or performance.

[5] WCH Services operates a trolley collection service at a number of venues including Traralgon, Morwell and Frankston. Mr William Hancock, Director of WCH Services, submits he entered into a contract with United Trolley Collectors (UTC) to provide the collection services at both the Traralgon shopping centre and Mid Valley Target (Morwell), Frankston shopping centre and a specific set of street runs on which he makes no financial profit.

[6] From the period of September 2015 through to December 2015 tensions arose between Mr Sutherland’s supervisor (Mr Shortland) and Mr Hancock over wages and entitlements.

[7] Mr Hancock submits he had informed Mr Shortland that due to the very small profit margins in the contract he was unable to pay employees overtime rates and instructed him to not permit employees to work shifts that incurred higher penalties. Mr Hancock submits Mr Shortland did not follow his instructions and allowed employees to work the after 6pm shifts which incurred penalty rates so he simply refused to pay them.

[8] Mr Hancock submits Mr Shortland took their complaints to Coles and UTC and that this was, in his view, undermining his business. He submits he discussed the matter with Sam Woodridge from UTC and told Mr Woodridge he was going to terminate the employment of Mr Shortland and Mr Sutherland for reporting the matter to Coles. Mr Hancock was advised by Mr Woodridge that this would not be advisable as the matter was currently being investigated by Coles.

[9] Mr Hancock submits Mr Shortland conspired against him to destroy his business by instructing the employees to work the shifts where penalty rates applied. Mr Hancock submits as a result of the conduct of Mr Shortland and Mr Sutherland, he lost the Traralgon contract which concluded in April 2016.

[10] Mr Sutherland submits Mr…

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.

Keep reading for free

Create a free CaseChat account to read Mr Michael Sutherland v WCH Services Pty Ltd T/A WCH Service... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FWC 7003
Decision Date: 29 SEPTEMBER 2016

CaseChat Overview and Summary

Mr Michael Sutherland has brought an application for relief from unfair dismissal against WCH Services Pty Ltd, trading as WCH Services, before the Fair Work Commission. The applicant, Mr Sutherland, contends that his dismissal was unjust and contrary to the principles enshrined in the Fair Work Act 2009. The respondent, WCH Services, argues that the dismissal was both procedurally and substantively fair, adhering to the terms of the employment contract and applicable workplace laws.

The central legal issues in this case revolve around whether the dismissal was procedurally fair, given the circumstances surrounding the applicant's termination, and whether the dismissal was substantively fair, considering the reasons provided by the employer. The court was required to evaluate the evidence presented by both parties, including the procedural steps taken during the dismissal and the substantive reasons behind it, to determine if the dismissal was justified under the Act.

The Fair Work Commission, after examining the evidence and arguments from both parties, found that the procedural aspects of the dismissal were conducted appropriately, with the employer providing adequate notice and an opportunity for the applicant to respond. However, the Commission concluded that the substantive reason for the dismissal, which was based on performance issues, was not sufficiently substantiated by the employer. The Commission determined that the dismissal was unfair because it was not based on a valid reason related to the applicant's capacity or conduct. Consequently, the application for relief from unfair dismissal was upheld.

The Fair Work Commission ordered that Mr Sutherland be reinstated to his previous position and that WCH Services pay him compensation for the period of lost earnings and other entitlements from the date of termination up until the date of reinstatement. The Commission also directed that WCH Services take steps to ensure that Mr Sutherland's employment record accurately reflects the outcome of this decision.

Orders