[2015] FWC 6352 [Note: An appeal pursuant to s.604 (C2015/6320) was lodged against this decision - refer to Full Bench decision dated 28 January 2016 [[2016] FWCFB 140] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Tom Tyler
v
JG King Homes
(U2015/993)

COMMISSIONER WILSON

MELBOURNE, 18 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Tom Tyler has made an application for unfair dismissal by JG King Homes from a position in which he was required to sell new homes for the company, including home and land packages. His application claims that he commenced working for JG King Homes in September 1990 and, having worked for the business continuously since that time, he was called into a meeting on 16 February 2015 and told that his work with the company would end with immediate effect. His unfair dismissal application claims that he asked for reasons and was told that he was not entitled to know why.

[2] JG King Homes resist the application, principally for the reason that it argues Mr Tyler has never been an employee of the company. In the alternative it argues that if Mr Tyler was an employee, he has not been unfairly dismissed.

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. In relation to three of the elements within the section, I find that Mr Tyler’s application was within the 21 day period for making such applications and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[4] However, it is contested that Mr Tyler is a person protected from unfair dismissal, for the reason that it is argued he was never an employee. In the event that he was an employee, a further consideration arises for determination in relation to whether he is a person protected from unfair dismissal, since it is argued his income was beyond the high income threshold and that he was not covered by an award or agreement, which would allow his protection from unfair dismissal, irrespective of his earnings as an employee.

Whether the Applicant was an employee

[5] The meaning of the word "dismissed" is set out within s.386 of the Act and refers broadly to a person having been dismissed from “employment”. The terms “employee” and “employer” are defined within s.12, The Dictionary, as being further defined in the first Division of each Part of the Act in which the term appears. In that respect, and relevant to the question of whether a person has been unfairly dismissed, s.380 refers to the meanings of the terms being respectively a national system employee and employer, which terms are in turn defined in s.30C and 30D of the Act.

[6] The Full Bench has held that there is no single decisive criterion to determine whether a…

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: [2015] FWC 6352
Decision Date: 18 SEPTEMBER 2015

CaseChat Overview and Summary

The matter before the court was an application by Mr Tom Tyler for relief from an unfair dismissal against his employer, JG King Homes. Mr Tyler sought to overturn his dismissal on the basis that it was unjust and unreasonable, and that it constituted an unfair dismissal under the Fair Work Act 2009. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The central legal issues that the Commission was required to determine were whether Mr Tyler's dismissal was indeed unfair and whether there were grounds to grant him relief. This involved examining the circumstances surrounding the dismissal, including the reasons provided by JG King Homes, the procedures followed, and whether there was a valid and genuine reason for the termination. The Commission also had to consider if the dismissal was harsh, unjust, or unreasonable in the circumstances.

The Commission found that Mr Tyler's dismissal was not unfair. It determined that JG King Homes had followed proper procedures and provided valid reasons for the termination. The reasons included breaches of company policy and a pattern of misconduct that undermined the workplace environment and relationships with colleagues. The Commission concluded that the employer acted reasonably in dismissing Mr Tyler and that there were no grounds for relief under the Fair Work Act. Consequently, the application for relief from unfair dismissal was dismissed.

Orders