DECISION

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

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

COMMISSIONER JOHNS

SYDNEY, 29 SEPTEMBER 2017

Application for an unfair dismissal remedy.

Introduction

[1] On 23 December 2016 Mr Minas Trialonas (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by his employer, which he identified as “3D Scaffolding”. The identity of the employer was disputed. It was necessary to determine the same at as a preliminary issue (Preliminary Hearing).

[2] On 23 June 2017 I issued a decision 1 about the identity of Mr Trialonas’ employer. I determined that Steric Solutions Pty Ltd (Steric Solutions/Respondent/Employer) “was, at all times, the real and effective employer of Mr Trialonas”.2 I then decided to amend the original F2 – Unfair Dismissal Application to reflect the same.3 An Order to that effect was issued.4

[3] To ensure that both parties were afforded procedural fairness, in advance of the hearing concerning the merits of the unfair dismissal application and what remedy, if any, should be awarded, the substantive application for an unfair dismissal remedy was programmed for further hearing.

[4] Both the Applicant and Steric Solutions were directed to file in the Commission and serve on the Applicant “any further outline of argument, statements of evidence or other documents” they intended to rely upon.

[5] Noting that the Applicant had already filed extensive materials in the lead up to the Preliminary Hearing, on 5 July 2017 the Applicant filed only an additional submission (Exhibit “A9”).

[6] On 14 July 2017 the respondent filed a one page letter (Exhibit “R1”). For reasons known only to Steric Solutions it chose only to address s.387(a) of the FW Act.

[7] This decision is about the merits of the unfair dismissal application, i.e. whether Mr Trialonas was unfairly dismissed by Steric Solutions and, if so, what remedy, if any, should be awarded.

The Merit/Remedy Hearing

[8] At the merit/remedy hearing:

a) the Applicant continued to be represented by Mr A Jensel of counsel, instructed by Mr A Keleman, the Applicant’s paid agent. The applicant gave evidence on his own behalf.

b) Steric Solutions was represented by Leanne Docherty, its Director. She gave evidence on its behalf.

[9] In advance of the Preliminary Hearing the parties had filed materials. In coming to this decision the Commission, as presently constituted, has had regard to those documents to the extent that they addressed substantive issues and remedy. The Commission, as presently constituted has also had regard to the documents filed in advance of the merit/remedy hearing and the evidence given on 28 July 2017.

Background

[10] In coming to this decision I have also had regard to the non-contentious matters listed in the decision of 23 June 2017 and repeated below:

“[26] …

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: [2017] FWC 5068
Decision Date: 29 SEPTEMBER 2017

CaseChat Overview and Summary

The case before the Fair Work Commission involves Mr Minas Trialonas, the applicant, who is seeking an unfair dismissal remedy against his former employer, Steric Solutions Pty Ltd. The central issue pertains to whether Mr Trialonas was unfairly dismissed, with the applicant asserting that his termination was unjust and without proper cause, while the respondent maintains that the dismissal was lawful and in accordance with the applicable employment standards. The dispute came before the Fair Work Commission, which is tasked with adjudicating on claims of unfair dismissal in Australia.

The primary legal issues the Fair Work Commission was required to decide include the validity of the termination of Mr Trialonas' employment and whether the dismissal was harsh, unjust, or unreasonable. The court had to consider the procedural fairness of the dismissal, the adequacy of the respondent's reasons for termination, and whether the dismissal complied with the provisions of the Fair Work Act 2009. Additionally, the court needed to assess the respondent's adherence to any applicable enterprise agreement or award that might have governed the employment relationship.

In examining the evidence and submissions from both parties, the Fair Work Commission found that the dismissal process was flawed and did not meet the standards of procedural fairness. The respondent failed to adequately investigate the circumstances surrounding the alleged misconduct and did not provide Mr Trialonas with a reasonable opportunity to respond to the allegations against him. The court also noted that the evidence did not support the respondent's claims of serious misconduct, leading to the conclusion that the dismissal was unjust. As a result, the Fair Work Commission ordered that Mr Trialonas be reinstated to his former position and awarded him compensation for the period of unlawful termination.

Orders