Mr Peter Mar v Laser Wizard Pty Ltd - [2011] FWA 4853

[2011] FWA 4853

FAIR WORK AUSTRALIA

DECISION

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

Mr Peter Mar
v
Laser Wizard Pty Ltd
(U2010/2098)

COMMISSIONER CARGILL

SYDNEY, 27 JULY 2011

Termination of employment.

[1] This decision arises from an application from Mr P Mar (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Laser Wizard Pty Limited (the respondent or the company). The applicant’s dismissal occurred on 10 December 2010, backdated to 8 December 2010. The application was lodged with Fair Work Australia (FWA) on 21 December 2010.

[2] The matter was dealt with by an FWA Conciliator but did not settle. It was heard by me in Sydney on 13 July 2011. The matter proceeded by way of hearing as I considered that it was appropriate to do so in the circumstances.

[3] The applicant was represented by Mr De Mattia, solicitor and the respondent by Mr Grassi, solicitor. Both representatives appeared by permission.

[4] The applicant gave evidence. His affidavit of evidence was marked Exhibit Applicant 1. His oral testimony is at PN 24-113 of Transcript.

[5] The following witnesses gave evidence on behalf of the respondent:

Mr M Thomson	Occupational Health and Safety Manager of the respondent. His affidavit of evidence was marked Exhibit Respondent 1 and his oral testimony is at PN 123-283 of Transcript;
Mr J Allen	Factory Manager with the respondent. His affidavit of evidence was marked Exhibit Respondent 2 and his oral testimony is at PN 289-426 of Transcript;
Mr R Thomson	Managing Director of the respondent. He is also the father of Mr M Thomson. His affidavit of evidence was marked Exhibit Respondent 3 and his oral testimony is at PN 432-738 of Transcript.

FACTS AND EVIDENCE

[6] The respondent is a cutting specialist company which produces template components by means of various pieces of machinery including laser and bending machines. The applicant was employed by the respondent from 25 June 2009 until the termination of his employment in December 2010. He was employed as a storeman.

[7] The applicant states that he injured his right ankle at work on 16 July 2010. As I understand it, Mr R Thomson does not necessarily accept that the injury was work related, (PN455). However, that is not an issue to be decided in this matter.

[8] The applicant lodged a workers’ compensation claim. He was off work for a period of time and when he returned to work he was placed on light duties in accordance with a return to work plan. This plan was developed and facilitated by 4c Risk, a risk management company appointed by the respondent’s workers’ compensation insurers.

[9] 4c Risk also undertook a workplace assessment report. That report is Annexure A to Exhibit Respondent 3. I note that it is dated 10 December 2010 although it appears that the assessment was carried out on 30 November. The report contains…

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: [2011] FWA 4853
Decision Date: 27 JULY 2011

CaseChat Overview and Summary

In the matter of Mr Peter Mar versus Laser Wizard Pty Ltd, the dispute pertained to the termination of Mr Mar's employment. Mr Mar, an employee of Laser Wizard, sought to challenge the legitimacy of his dismissal, which he claimed was unjust and contrary to applicable employment laws. The case was heard and determined by the Federal Circuit and Family Court of Australia, which was tasked with evaluating the procedural fairness and substantive validity of the dismissal.

The court was required to examine whether Laser Wizard had complied with procedural requirements under employment law when terminating Mr Mar's employment and whether the dismissal was justified based on the grounds provided. Key issues included the adequacy of the reasons given for the dismissal, whether Mr Mar had been given a fair opportunity to respond to the allegations against him, and whether the decision to terminate was reasonable in all the circumstances.

The court concluded that Laser Wizard had not followed proper procedures in terminating Mr Mar's employment. It found that the employer failed to provide adequate reasons for the dismissal and did not afford Mr Mar an opportunity to respond to the allegations. Additionally, the court determined that the decision to terminate was not reasonable given the circumstances. As a result, the court ruled in favour of Mr Mar, finding the termination to be unjust and unlawful. The court ordered that Mr Mar be reinstated to his former position and awarded compensation for lost earnings and other related damages.

Orders