DECISION

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

Mr Minas Trialonas
v
Steric Solutions Pty Ltd
(U2016/15558)

DEPUTY PRESIDENT SAMS

SYDNEY, 19 JULY 2018

Application for an unfair dismissal remedy – remittal from Full Bench for re-hearing – Small Business Fair Dismissal Code – incident involving foul language seemingly resolved – manager directed to dismiss applicant three days later – whether compliance with the Code – no valid reason for dismissal – no procedural fairness – no compliance with the Code – dismissal harsh, unjust and unreasonable – reinstatement inappropriate – compensation ordered.

BACKGROUND

[1] In a decision of Commissioner Johns on 29 September 2017, Mr M Trialonas was found to have been unfairly dismissed by Steric Solutions Pty Ltd (‘Steric Solutions’ or the ‘respondent’) on 9 December 2016; see: Trialonas v Steric Solutions Pty Ltd [2017] FWC 5068. The Commissioner ordered that the respondent pay $25,765.22 as compensation for Mr Trialonas’s unfair dismissal. The decision and order were made under the relevant provisions of Part 3-2 of the Fair Work Act 2009 (the ‘Act’). Steric Solutions appealed that decision and order. A Full Bench of the Fair Work Commission (the ‘Commission’), on 24 January 2018, upheld the appeal and quashed the Commissioner’s decision and order; see: Steric Solutions Pty Ltd v Trialonas [2018] FWCFB 479. At paragraphs [45]-[47], the Full Bench said:

‘[45] We are satisfied that Steric Solutions was denied procedural fairness when Mr Trialonas was permitted to give evidence about the dismissal at the first hearing in circumstances where Steric Solutions was not on notice that this evidence would be given. It was advised that the hearing was held to determine the identity of the employer.

[46] We are satisfied that Steric Solutions was denied procedural fairness as it was denied the opportunity to cross-examine Mr Trialonas at that hearing as Ms Docherty, who was the representative of Steric Solutions, was excluded from the hearing during his evidence.

[47] Further we are satisfied that Steric Solutions was denied procedural fairness as Ms Docherty was questioned about the dismissal of Mr Trialonas without being provided with the opportunity to lead evidence about the events in circumstances where she had been called by the Commission to give evidence only about the identity of the employer. The Commissioner then made findings of fact about the dismissal which were relied upon in his second decision.’

[2] As a consequence, the Full Bench remitted the re-determination of the matter to me. In accordance with my usual practice, I listed a conference of the parties in an attempt to settle the application. As no settlement could be reached on 28 February 2018, I issued directions for the re-hearing of the matter and listed the arbitration on 26 March 2018. Final written submissions were filed on 26 April 2018.

[3] At the hearing, Mr A Jenshel of Counsel with Mr A Kelemen, Paid Agent, appeared with permission granted for the…

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: [2018] FWC 3996
Decision Date: 19 JULY 2018

CaseChat Overview and Summary

Mr Minas Trialonas has applied to the Fair Work Commission for a remedy following his dismissal from Steric Solutions Pty Ltd. The case has been remitted from the Full Bench for a re-hearing, as the initial dismissal was found to be unjust and unreasonable. The dispute centres on whether the company complied with the Small Business Fair Dismissal Code and whether the dismissal was procedurally fair.

The legal issues in this case revolve around the applicability of the Small Business Fair Dismissal Code to the dismissal and whether the company followed the correct procedures. The key question is whether the dismissal was justified and whether there was procedural fairness. The applicant argued that the dismissal was unfair because it was not a valid reason for dismissal, and the company did not follow the proper procedures under the Code.

The Commission found that the incident involving foul language, which seemingly resolved the matter, was not the sole basis for the dismissal. The manager directed the dismissal three days later, without providing a valid reason. The Commission held that the dismissal was not compliant with the Code and was not procedurally fair. The company did not provide a valid reason for the dismissal, and the applicant was not given an opportunity to respond to the allegations. The Commission concluded that the dismissal was harsh, unjust, and unreasonable, and that reinstatement was inappropriate. Instead, the Commission ordered compensation to be paid to the applicant.

Orders